YOU SHOULD KNOW THAT THE JUROR THAT HAD THE MEDICAL APPOINTMENT HAS CANCELED THAT APPOINTMENT AND SCHEDULED IT FURTHER IN THE FUTURE. AND WITHOUT IDENTIFYING THAT INDIVIDUAL, WE WILL BE ABLE TO ACCOMMODATE THE NEW DATE AND TIME.

SO AS A RESULT, TODAY IS GOING TO BE BASED PRIMARILY ON WHEN WE HAVE, YOU KNOW, NORMAL BREAK PERIODS AND SO FORTH. SO I’M GOING TO GO BACK ON WHAT I TOLD YOU YESTERDAY. IT SHOULD BE A RELATIVELY NORMAL DAY.

BEFORE WE GET STARTED TODAY, I JUST WANT TO GIVE YOU A HEADS UP ON A COUPLE PUBLICITY KINDS OF THINGS THAT YOU MAY OR MAY NOT BE AWARE OF. FIRST OF ALL, I DON’T READ ON A REGULAR BASIS THE “L. A. TIMES.” THE “L. A. TIMES,” HOWEVER, IS, INDEED, COVERING THIS ON A REGULAR BASIS. SO FOR THOSE OF YOU THAT USE THE “L. A. TIMES” AS YOUR MAIN INFORMATION SOURCE, PLEASE JUST, YOU KNOW, USE THE HEADS UP JUST LIKE WE’VE ALWAYS BEEN TELLING YOU TO AND DISREGARD ANY ARTICLES THAT RELATE TO THIS.

THE “UNION-TRIBUNE” LATELY HAS BEEN PUTTING A VERY LITTLE THING ON THE FRONT PAGE AND THEN AN ENORMOUS AMOUNT OF INFORMATION ON THE PAGES THAT FOLLOW. AGAIN I JUST ASK THAT YOU STAY AWAY FROM THAT. DON’T EVEN READ THE HEADINGS IF YOU CAN AVOID IT BECAUSE YOU CAN OBVIOUSLY KNOW WHAT THE CASE IS ABOUT SIMPLY BY LOOKING AT THE NATURE OF THE ARTICLE.

ALSO, IT HAS BEEN BROUGHT TO MY ATTENTION, AND I HAVE SEEN A SERIES OF INTERVIEWS THAT WERE DONE WITH A FAMILY MEMBER OF ONE OF THE PARTICIPANTS IN THE TRIAL. THAT PERSON IS NOW UNDER A GAG ORDER AND IS NOT TO HAVE ANY ADDITIONAL PUBLIC EXPOSURE, PUBLIC INTERVIEWS. BUT THAT PERSON MAY HAVE BEEN SOMEONE THAT YOU INADVERTENTLY GOT INTO AN ARTICLE ABOUT READING OR READING THE ARTICLE BEFORE YOU BECAME AWARE. IT WAS ABOUT THIS CASE.

SO, AGAIN, I JUST GIVE YOU A HEADS UP. DO THE BEST YOU CAN. STAY AWAY FROM THE MATERIAL.

NOW THAT THE N. B. A. SEASON IS OVER, YOU CAN PICK THAT UP WITH THE SOCCER. BUT THE U. S. A. DOESN’T PLAY UNTIL 4:30 TOMORROW MORNING. SO THAT’S GOING TO BE TOUGH IF YOU’RE A REAL FAN. SO, AT ANY RATE, JUST DO WHAT YOU’RE DOING, AND WE’LL HOPEFULLY BE ABLE TO HANDLE EVERYTHING OUTSIDE THE WAY WE HAVE BEEN.

ALL RIGHT. MR. DUSEK.

MR. DUSEK: ANGELA ELKUS.

ANGELA ELKUS,

CALLED AS A WITNESS BY THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:

THE CLERK: WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.

THE WITNESS: ANGELA ELKUS. E-L-K-U-S AS IN SAM.

DIRECT EXAMINATION

BY MR. DUSEK:

Q: IS IT MISSUS ELKUS?

A: YES, IT IS.

Q: MRS. ELKUS, ARE YOU EMPLOYED?

A: I AM A STAY-AT-HOME MOM.

Q: HOW LONG HAVE YOU BEEN DOING THAT?

A: FOR FOURTEEN YEARS.

Q: HOW MANY KIDS DO YOU HAVE?

A: I HAVE TWO.

Q: HOW OLD?

A: TWELVE AND FOURTEEN.

Q: WHAT PART OF TOWN DO YOU LIVE IN?

A: IN SABRE SPRINGS.

Q: WHERE DO YOU LIVE — DO YOU KNOW WHERE MR. WESTERFIELD LIVES?

A: YES, I DO.

Q: DO YOU SEE MR. WESTERFIELD HERE IN COURT TODAY?

A: YES, I DO.

Q: WOULD YOU POINT HIM OUT, PLEASE, AND DESCRIBE WHAT HE’S WEARING TODAY.

A: YES. HE’S SITTING ON THE END CHAIR, A DARK GRAY JACKET AND BLUE-AND-MAROON TIE.

THE COURT: THE RECORD WILL REFLECT IDENTIFICATION.

BY MR. DUSEK:

Q: WHERE DO YOU LIVE IN RELATION TO HIS RESIDENCE?

A: I LIVE ON THE CUL DE SAC DIRECTLY BEHIND HIS HOME.

Q: DO YOU KNOW WHERE THE HOEFFS LIVE, CINDY OR CYNTHIA HOEFF?

A: CHRISTINA?

Q: YES.

A: YES, I DO. HER HOUSE IS DIRECTLY BEHIND MR. WESTERFIELD. MINE IS THE NEXT HOUSE.

Q: TO COME AND GO BY HER HOUSE, DO YOU HAVE TO GO BY THE WESTERFIELD RESIDENCE?

A: YES, I DO.

Q: HOW DO YOU DO THAT?

A: DOWN MOUNTAIN PASS, TAKE A RIGHT ON BRIARLEAF, AND TURN RIGHT INTO MY CUL DE SAC.

Q: HOW MUCH DO YOU DO THAT DURING A DAY?

A: ON AN AVERAGE DAY EIGHT TO TEN TIMES.

Q: WHY SO OFTEN?

A: WELL, I HAVE TO DRIVE MY KIDS TO AND FROM SCHOOL, TO ACTIVITIES, MY ERRANDS, AND THAT’S THE ONLY ROUTE I CAN TAKE TO MY HOME.

Q: AS YOU’RE GOING BACK AND FORTH THERE, DO YOU BECOME FAMILIAR WITH THE AREA AROUND MR. WESTERFIELD’S HOME, THE STREET AREA, THE SIDEWALK AREA?

A: YES.

Q: HAVE YOU EVER SEEN ANY UNATTENDED KIDS PLAYING IN THAT AREA?

A: EVERY NOW AND THEN YOU’LL SEE SKATEBOARDERS, ROLLER BLADERS. GENERALLY THE KIDS YOU SEE WITHOUT ADULTS ARE TEN YEARS AND OLDER.

Q: HOW ABOUT THE YOUNGER KIDS, THE —

A: I’VE SEEN A COUPLE.

Q: OVER HOW MANY YEARS; HOW OFTEN WOULD YOU SAY?

A: WE’VE LIVED THERE SEVEN YEARS, AND I’VE MAYBE SEEN AN UNATTENDED SMALL CHILD MAYBE THREE, FOUR TIMES.

Q: ARE YOU FAMILIAR WITH A MOTOR HOME THAT HAS BEEN IN

OR —

A: YES.

Q: — AROUND MR. WESTERFIELD’S RESIDENCE?

A: YES.

Q: HOW DID YOU BECOME FAMILIAR WITH THAT?

A: I WOULD HAVE TO PASS BY IT WHEN I WOULD DRIVE TO MY HOME. IT WOULD BE PARKED ON THE STREET.

Q: CAN YOU DESCRIBE THE MOTOR HOME?

A: IT’S VERY LARGE. KIND OF TAN, CREAM IN COLOR. BOX-SHAPED. IT’S NOT THE TRAILER TYPE THAT YOU PULL WITH A TRUCK.

A: IT WOULD BE PARKED ONE OF TWO PLACES. ON MOUNTAIN PASS, ACROSS THE STREET FROM MR. WESTERFIELD’S HOME, OR AROUND THE CORNER ON BRIARLEAF.

Q: WOULD THAT BE ON BRIARLEAF ADJACENT TO THE SIDE OF THE DEFENDANT’S HOUSE?

A: YEAH.

Q: HOW LONG WOULD YOU SEE IT PARKED THERE AT A TIME?

A: GENERALLY TWO DAYS AND THEN IT WOULD BE GONE FOR A COUPLE DAYS AND THEN BACK FOR TWO DAYS.

Q: AND WHEN IT WAS PARKED THERE, WOULD YOU SEE ANY ACTIVITY AROUND THAT MOTOR HOME?

A: LOOKED LIKE JUST GETTING READY TO GO ON A TRIP.

Q: HOW COULD YOU TELL?

A: THINGS WERE IN THE FRONT YARD, PACKING, UNPACKING. I HAVE GONE CAMPING, SO I KNOW WHAT PACKING AND UNPACKING LOOKS LIKE.

Q: SO THE PEOPLE WOULD BE WORKING AROUND THE MOTOR HOME WHEN YOU SAW IT OPEN THERE?

A: YES.

Q: APPROXIMATELY AS OF FEBRUARY OF THIS YEAR, WHEN WAS THE LAST TIME YOU RECALL IT BEING THERE, IF YOU CAN GIVE US AN APPROXIMATION?

A: I WOULD SAY AT LEAST TWO MONTHS.

Q: UNTIL THESE EVENTS HAPPENED IN JANUARY, I’M SORRY, IN FEBRUARY, WERE YOU FAMILIAR WITH THE VAN DAMS?

A: NO.

Q: DIDN’T KNOW THEM?

A: I HAD BEEN INTRODUCED TO BRENDA ABOUT A YEAR AGO. WE WERE JUST INTRODUCED BY NAME.

Q: AND SINCE THESE EVENTS HAPPENED, HAVE YOU BEEN INSIDE THEIR HOME?

A: YES. ONCE.

Q: HOW DID THAT HAPPEN?

A: I WAS — I HAD SIGNED UP TO PROVIDE LUNCH ON THE SUNDAY AFTER DANIELLE DISAPPEARED, AND SO I TOOK LUNCH DOWN TO THEIR HOME.

Q: DO YOU KNOW IF THEY HAVE A DOG?

A: YES, THEY DO.

Q: DESCRIBE THE DOG FOR US.

A: IT’S A WEIMARANER, GRAY, FAIRLY YOUNG, WHEN I SAW IT THAT SUNDAY.

Q: AND YOU HAD NEVER BEEN IN THAT HOUSE BEFORE?

A: NO, SIR.

Q: HOW DID THE DOG REACT TO YOU GOING IN THE HOUSE?

A: WHEN I CAME IN, HE WAS JUST STANDING THERE. HE LOOKED RATHER SCARED, SHY, CONFUSED. I CAME THROUGH INTO THE KITCHEN. HE CAME IN. HE WAS STANDING JUST BESIDE ME. I PETTED HIM ON THE TOP OF THE HEAD. HE WAS STANDING PERFECTLY STILL. AND I DIDN’T HAVE ANY OTHER CONTACT WITH HIM.

Q: DID HE BARK?

A: NO, SIR.

Q: WHEN YOU GAVE HIM A LITTLE PAT, WHAT HAPPENED?

A: NOTHING.

MR. DUSEK: THANK YOU, MA’AM.

THE COURT: ALL RIGHT.

CROSS-EXAMINATION.

CROSS-EXAMINATION

BY MR. BOYCE:

Q: GOOD MORNING, MISS ELKUS.

A: GOOD MORNING.

Q: THE DAY THAT YOU WERE AT THE VAN DAMS’, THERE WAS A LOT OF ACTIVITY, WASN’T THERE?

A: CORRECT.

Q: YOU WERE PROVIDING — YOU HELPED PROVIDE LUNCH I BELIEVE YOU TOLD US.

A: YES, SIR.

Q: HOW MANY PEOPLE WERE IN THE HOUSE DO YOU THINK?

A: I BELIEVE THERE WERE THREE, POSSIBLY FOUR.

Q: AND WERE THERE PEOPLE COMING AND GOING DURING THE TIME THAT YOU WERE THERE?

A: NO, SIR.

Q: WHO WERE YOU PROVIDING LUNCH FOR?

A: I WAS PROVIDING LUNCH FOR WHOEVER WOULD HAPPEN TO BE AT THE HOUSE THAT DAY HELPING OUT.

Q: AND HOW LONG WERE YOU AT THE HOUSE?

A: I WAS INSIDE THEIR HOME APPROXIMATELY FIVE MINUTES.

Q: WHO WAS OUTSIDE THE HOME WHEN YOU WERE THERE?

A: THE GENTLEMAN THAT LET ME IN THE FRONT DOOR. AT THAT POINT THERE WAS NO NEWS MEDIA OR ANYBODY IN FRONT OF THE VAN DAMS’ HOME.

Q: WERE THERE ANY POLICE OFFICERS COMING AND GOING?

A: THERE WERE NONE AT THE HOME WHEN I WAS THERE.

Q: YOU SAW NO POLICE OFFICERS AT ALL?

A: NOT AT THEIR HOME, NO.

Q: AND INSIDE THE HOME YOU SAID THERE WERE THREE OR FOUR PEOPLE BESIDES YOURSELF.

A: CORRECT.

Q: WHO WERE THEY?

A: THEY WERE INTRODUCED TO ME AS RELATIVES OF THE VAN DAMS. THEY WERE NOT INTRODUCED BY NAME.

Q: AND DID YOU PREPARE LUNCH WHILE YOU WERE THERE?

A: NO. I MADE IT AT MY HOME, AND ANOTHER NEIGHBOR AND I TOOK IT DOWN TOGETHER.

Q: HOW LONG WERE YOU AT THE HOUSE?

A: AT THE VAN DAMS’ HOME?

Q: YES.

A: APPROXIMATELY FIVE MINUTES.

Q: AND WHILE YOU WERE IN THE HOME WITH THESE THREE OR FOUR OTHER PEOPLE, YOU SAW THE DOG, IS THAT RIGHT?

A: CORRECT.

Q: AND IT FOLLOWED YOU WHILE YOU WERE WALKING THROUGHOUT THE HOUSE?

A: I JUST SAW IT WHEN I CAME THROUGH THE FRONT DOOR, AND IT KIND OF FOLLOWED, WALKED WITH US INTO THE FAMILY ROOM, KITCHEN AREA, AND JUST STOOD THERE.

Q: HAD YOU SEEN THE DOG BEFORE THAT?

A: NO, SIR.

Q: MR. WESTERFIELD’S MOTOR HOME, YOU SAW IT I BELIEVE ON A MONTHLY BASIS.

MR. DUSEK: OBJECTION. VAGUE AS TO WHEN.

THE COURT: BE SPECIFIC AS TO TIME, COUNSEL. SUSTAINED.

BY MR. BOYCE:

Q: SAY WITHIN THE YEAR PRIOR TO FEBRUARY 1ST, DID YOU SEE IT ON APPROXIMATELY A MONTHLY BASIS?

A: APPROXIMATELY.

Q: AND YOU WOULD SEE IT PARKED IN DIFFERENT LOCATIONS, TWO DIFFERENT LOCATIONS?

A: TWO DIFFERENT LOCATIONS.

Q: AND THE TIMES THAT YOU SAW IT, IT WOULD BE SITTING OUT THERE FOR A COUPLE DAYS AT A TIME, IS THAT RIGHT?

A: CORRECT.

Q: AND THIS WAS BEFORE THE WEEKEND USUALLY?

A: I DIDN’T PAY REAL CLOSE ATTENTION, BUT I WOULD SAY YES.

Q: AND THEN THE MOTOR HOME WOULD BE GONE FOR A WEEKEND?

A: IT WOULD BE GONE FOR WHATEVER DAYS IT WAS GONE. NOT NECESSARILY A WEEKEND. I’M NOT SURE.

Q: WOULD RETURN AFTER A PERIOD OF TIME.

A: A COUPLE DAYS USUALLY.

Q: THEN THE MOTOR HOME WOULD BE THERE AGAIN FOR A COUPLE DAYS.

A: CORRECT.

Q: NOW, ON THE WEEKEND OF FEBRUARY 1ST, DID YOU SEE THE MOTOR HOME?

A: NO, SIR, I DID NOT.

Q: SO YOU DON’T KNOW WHERE MR. WESTERFIELD WAS, DO YOU?

A: NO. I DON’T KEEP TRACK OF MR. WESTERFIELD, NO.

Q: HE COULD HAVE GONE SOMEWHERE IN HIS MOTOR HOME THAT WEEKEND.

A: HE COULD HAVE.

Q: AND THE WEEKEND BEFORE, DID YOU SEE THE MOTOR HOME AROUND MR. WESTERFIELD’S HOUSE?

A: I DIDN’T NOTICE ONE, NO.

Q: AND AGAIN YOU DIDN’T KNOW WHERE MR. WESTERFIELD WAS THAT WEEKEND EITHER.

A: NO.

Q: SO THE TIMES THAT YOU HAVE SEEN THE MOTOR HOME, THOUGH, IT HAS BEEN THERE FOR A COUPLE DAYS AT A TIME, IS THAT RIGHT?

A: YES.

Q: YOU DON’T KNOW WHETHER THERE WERE OTHER TIMES WHEN IT WAS POSSIBLY THERE FOR A DAY BEFORE THE SAME — BEFORE LEAVING THE SAME DAY.

A: I DON’T KNOW.

Q: NOW, ON OCCASION WHEN YOU’VE SEEN THE MOTOR HOME, YOU’VE ALSO SEEN PEOPLE BESIDES MR. WESTERFIELD AROUND THE MOTOR HOME.

A: YES.

Q: YOU DON’T KNOW WHO THOSE PEOPLE WERE, DO YOU?

A: I HAD NEVER MET ANY OF THEM, NO.

Q: YOU DON’T KNOW WHETHER THEY WERE RELATIVES OF MR. WESTERFIELD OR NOT.

A: I HAD BEEN TOLD THAT THE ONE PERSON I SAW — I’M SORRY — WAS IN FRONT.

Q: THE QUESTION IS WHETHER YOU KNEW WHETHER THEY WERE RELATIVES OF MR. WESTERFIELD.

A: I COULDN’T TELL YOU FOR SURE, NO.

Q: YOU DON’T KNOW WHETHER THEY WERE FRIENDS OF MR. WESTERFIELD.

A: NO, I DO NOT.

Q: YOU JUST KNOW THAT THEY WERE AROUND THE MOTOR HOME.

A: YES. AND THEY WERE ALL ADULTS. AGE. THAT I SAW.

Q: THIS IS A FAMILY NEIGHBORHOOD, RIGHT?

A: CORRECT.

Q: THERE’S CHILDREN EVERYWHERE IN THE NEIGHBORHOOD.

A: THERE ARE A LOT OF CHILDREN IN OUR NEIGHBORHOOD.

Q: IN FACT, YOU HAVE TO BE CAREFUL WHEN YOU’RE DRIVING IN THE NEIGHBORHOOD THAT YOU DON’T HIT THE CHILDREN.

A: WE HAVE TO BE CAREFUL THAT DOGS, CHILDREN, ADULTS, A LOT OF PEOPLE GO WALKING, RUNNING, AND GENERALLY WE JUST FOLLOW ALL THE TRAFFIC RULES FOR SAFETY.

Q: AND YOU HAVE SEEN DANIELLE AND HER BROTHER PLAYING IN THE NEIGHBORHOOD, HAVEN’T YOU?

A: I HAVE ONLY SEEN DANIELLE AND HER BROTHER TWICE. AND THEY WERE ON THEIR SIDE OF THE STREET.

Q: THEY WERE IN THE NEIGHBORHOOD, THOUGH.

A: THEY WERE ON THEIR SIDE OF THE STREET IN THE NEIGHBORHOOD, SURE.

MR. BOYCE: NOTHING FURTHER, YOUR HONOR.

THE COURT: ALL RIGHT.

ANYTHING FURTHER?

REDIRECT EXAMINATION

BY MR. DUSEK:

Q: DO YOU RECALL WHICH BROTHER?

A: NO, I DON’T.

MR. DUSEK: THANK YOU, MA’AM.

THE COURT: ALL RIGHT.

ANYTHING FURTHER?

MR. BOYCE: NO, YOUR HONOR.

THE COURT: IS THIS WITNESS TO BE EXCUSED?

MR. DUSEK: YES.

THE COURT: MR. BOYCE?

MR. BOYCE: NO OBJECTION.

THE COURT: ALL RIGHT.

MA’AM, YOUR TIME WITH US IS DONE. PLEASE REMEMBER THE ADMONITION NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THE CASE IS OVER. AND YOU’RE FREE TO LEAVE AT THIS TIME.

THE WITNESS: THANK YOU.

THE COURT: THANK YOU.

(THE WITNESS WAS EXCUSED.)

THE COURT: MR. DUSEK.

MR. DUSEK: WE’RE TRYING TO DETERMINE IF THE DEFENSE IS READY.

MR. FELDMAN: WE’RE GETTING SOME DOCUMENTS DELIVERED OVER, YOUR HONOR.

THE COURT: ALL RIGHT.

MR. DUSEK: WE’LL SKIP THAT WITNESS AND MOVE ON TO THE NEXT ONE.

(DISCUSSION OFF THE RECORD AMONG COUNSEL.)

MR. CLARKE: GREG SHEETS, YOUR HONOR.

THE COURT: ALL RIGHT.

GREG SHEETS,

CALLED AS A WITNESS BY THE PLAINTIFF, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:

THE CLERK: SIR, PLEASE STATE YOUR NAME AND SPELL IT FOR THE RECORD.

THE WITNESS: GREG SHEETS. G-R-E-G S-H-E-E-T-S.

DIRECT EXAMINATION

BY MR. CLARKE:

Q: MR. SHEETS, GOOD MORNING.

A: GOOD MORNING.

Q: WHO ARE YOU EMPLOYED BY?

A: VERIZON WIRELESS.

Q: WHAT IS VERIZON WIRELESS?

A: CELLULAR PHONE COMPANY.

Q: DOES VERIZON WIRELESS DO BUSINESS IN THE COUNTY OF SAN DIEGO?

A: YES.

Q: WHAT IS YOUR SPECIFIC POSITION WITH VERIZON?

A: SENIOR CUSTOMER SERVICE REPRESENTATIVE.

Q: WHAT DOES THAT MEAN?

A: I ALSO HANDLE THE CUSTODIAN OF RECORD DUTIES.

Q: SO YOU’RE INVOLVED WITH RECORDS THAT VERIZON WIRELESS — IS THAT THE TITLE OF THE COMPANY?

A: YES.

Q: SO YOU’RE INVOLVED WITH RECORDS THAT VERIZON KEEPS AS FAR AS CELLULAR PHONES AND WIRELESS SERVICE, INCLUDING THE SAN DIEGO COUNTY?

A: YES.

Q: HAVE YOU BROUGHT SOME RECORDS WITH YOU TO COURT TODAY?

A: YES.

Q: ARE THEY IN FACT RECORDS KEPT BY VERIZON WIRELESS?

A: YES.

Q: ARE THEY RECORDS THAT RELATE TO AN INDIVIDUAL NAMED DAVID WESTERFIELD?

A: YES.

Q: FIRST OF ALL, WITH RESPECT TO THOSE RECORDS, —

MR. CLARKE: AND, YOUR HONOR, I WOULD LIKE TO HAVE THEM MARKED, AND I BELIEVE THERE’S TWO. AND IF WE COULD MARK FOR THE RECORD INITIALLY —

THE COURT: THE FIRST WILL BE 62.

CORRECT, PEG?

THE CLERK: YES.

THE COURT: THE FIRST WILL BE 62 FOR IDENTIFICATION.

MR. CLARKE: WHAT APPEARS TO BE A SERIES OF SEVEN DOCUMENTS, THE FACE PAGE OF WHICH, PAGE 1, IS LABELED A SUBPOENA DUCES TECUM. ACTUALLY THAT’S A SIX-PAGE DOCUMENT, YOUR HONOR. THE FACE SHEET IS SIMPLY THE SUBPOENA. SO I’M GOING TO REMOVE THAT.

THE COURT: ALL RIGHT.

(SIX-PAGE DOCUMENT OF VERIZON WIRELESS MARKED

TRIAL EXHIBIT NUMBER 62 FOR IDENTIFICATION.)

MR. CLARKE: AND, YOUR HONOR, THE SECOND DOCUMENT FOR THE RECORD CAN BE IDENTIFIED AS A SERIES OF DOCUMENTS, THE FIRST PAGE OF WHICH IS A FAX COVER SHEET THAT I DON’T THINK WE NEED TO UTILIZE EITHER.

THE COURT: ALL RIGHT.

MR. CLARKE: AND THE REMAINDER OF THE DOCUMENT THAT WILL BE MARKED IS A SERIES OF WHAT APPEARS TO BE ELEVEN PAGES, THE FRONT PAGE OF WHICH IS DESCRIBED AS CALL DETAIL LOOKUP.

THE COURT: ALL RIGHT. THAT WILL BE 63.

MR. CLARKE: L-O-O-K-U-P.

(ELEVEN-PAGE DOCUMENT OF VERIZON WIRELESS

MARKED TRIAL EXHIBIT NUMBER 63 FOR IDENTIFICATION.)

BY MR. CLARKE:

Q: ALL RIGHT, MR. SHEETS, WITH RESPECT TO THE FIRST DOCUMENT THAT’S BEEN LABELED COURT’S EXHIBIT 62, CAN YOU DESCRIBE WHAT THAT IS.

A: THIS IS A DUPLICATE COPY OF A BILLING STATEMENT.

Q: WITH RESPECT TO WHAT SUBSCRIBER?

A: DAVID A. WESTERFIELD.

Q: IS THERE AN ADDRESS FOR MR. WESTERFIELD?

A: NO, THERE’S NOT.

Q: ALL RIGHT.

ON THAT FACE PAGE —

A: OH, YES, THERE IS.

Q: WHAT’S THAT ADDRESS?

A: 11995 MOUNTAIN PASS ROAD, SAN DIEGO, CALIFORNIA 92128-5261.

Q: THAT’S THE ZIP CODE?

A: YES.

Q: ALL RIGHT.

WITH RESPECT INITIALLY TO THE SECOND DOCUMENT THAT’S BEEN LABELED COURT’S EXHIBIT 63, I NEED MY GLASSES, CAN YOU DESCRIBE GENERALLY WHAT THAT DOCUMENT IS AS WELL?

A: THESE ARE RECORDS OF THE SWITCHING COMPUTER WHICH HANDLES THE INCOMING AND OUTGOING TRAFFIC FROM A CELL. PHONE.

Q: ALL RIGHT. I’LL HAVE YOU DESCRIBE WHAT THAT MEANS IN A LITTLE BIT.

BUT, FIRST OF ALL, WITH RESPECT TO BOTH THOSE EXHIBITS, ARE RECORDS KEPT IN THE ORDINARY COURSE OF BUSINESS AT VERIZON WIRELESS?

A: YES.

Q: DO THOSE RECORDS REFLECT TELEPHONE CALLS INDICATING INFORMATION SUCH AS WHEN THE CALL WAS MADE AND SO FORTH?

A: YES.

Q: AS FAR AS KEEPING RECORDS AT VERIZON WIRELESS, IS THERE A DUTY THAT THOSE RECORDS BE KEPT ACCURATELY?

A: YES.

Q: ARE THOSE RECORDS KEPT IN THE ORDINARY COURSE OF BUSINESS AT VERIZON WIRELESS?

A: YES.

Q: AND, LASTLY, ARE YOU AN INDIVIDUAL AT VERIZON WHO HAS LAWFUL OR PROPER CUSTODY OF THOSE RECORDS AS YOU HAVE TODAY?

A: YES.

Q: WITH RESPECT TO THOSE CALLS, AND LET’S TALK IF WE COULD A LITTLE BIT FIRST GENERALLY ABOUT CELLULAR PHONES. WITH RESPECT TO CELLULAR PHONES, WHEN SOMEONE HAS ONE AND MAKES A PHONE CALL, AGAIN, GENERALLY, WHAT HAPPENS WHEN SOMEONE MAKES THAT CALL?

A: WHEN THEY PRESS THE SEND KEY, IT TRANSMITS A RADIO SIGNAL WHICH IS THEN CAPTURED BY THE NEAREST CELL. SITE TOWER, WHICH THEN WILL TRANSMIT THE CALL TO WHEREVER IT’S GOING.

Q: CELL. SITE TOWER, WHAT’S THAT?

A: THAT IS A MECHANICAL STRUCTURE THAT WILL CAPTURE THE RADIO FREQUENCY FROM THE CELL. PHONE, WHICH ALLOWS THE CALL TO GO THROUGH.

Q: IS THAT A FANCY ANTENNA FOR LACK OF A BETTER TERM?

A: YES.

Q: WHEN A CALL IS RECEIVED BY THAT ANTENNA AT A CELL. SITE, THEN WHAT HAPPENS?

A: IT IS TRANSMITTED THROUGH THE REGULAR PHONE LINES AND WHERE IT ENDS UP EXACTLY LIKE A HOME PHONE.

Q: WITH REGARD TO THESE CELL. TOWERS, IF — NOW LET’S JUST USE THE EXAMPLE OF I PULL OUT MY CELL. PHONE RIGHT NOW AND DIAL A NUMBER AND PRESS SEND, DOES IT GO TO THE CLOSEST CELL. TOWER OR NOT?

A: IT TRIES TO GO TO THE CLOSEST ONE.

Q: OKAY.

YOU SAY TRIES.

A: YES.

Q: THAT MEANS, I ASSUME, THERE’S A FURTHER EXPLANATION.

A: YES. IF IT CANNOT REACH THE CLOSEST ONE, IT WILL GO TO THE NEXT CLOSEST ONE.

Q: AND DOES IT CONTINUE TO DO THAT UNTIL THE CALL CAN SUCCESSFULLY BE RECEIVED BY ONE OF THOSE CELL. SITES?

A: YES.

Q: NOW, WITH REGARD TO THOSE RECORDS THAT YOU HAVE BEFORE YOU WITH RESPECT TO MR. WESTERFIELD, I WOULD LIKE YOU TO DIRECT YOUR ATTENTION TO TWO SPECIFIC DATES WHICH ARE FEBRUARY 2ND, 2002, AND FEBRUARY 3RD, 2002. DO THE RECORDS THAT YOU HAVE IN THOSE TWO COURT EXHIBITS PROVIDE INFORMATION ABOUT CALLS THAT HE MADE FROM ONE OF HIS CELLULAR PHONES?

A: YES.

Q: IN PARTICULAR, AND IF WE COULD, START WITH FEBRUARY 2ND, AND CAN YOU TELL US WITH RESPECT TO THAT DATE, FEBRUARY 2ND, WHEN WAS THE FIRST TELEPHONE CALL THAT WAS MADE FROM MR. WESTERFIELD’S CELLULAR PHONE.

A: AT 10:08 A.M.

Q: DO THE RECORDS THAT YOU HAVE ALSO REFLECT THE TELEPHONE NUMBER THAT WAS BEING DIALED FROM THAT CELLULAR PHONE?

A: YES.

Q: AND IS THERE SUCH A NUMBER FOR THAT TELEPHONE CALL AT 10:08 A.M.?

A: YES.

Q: WHAT IS THAT NUMBER?

A: 858 679-8976.

Q: NOW, WITH REGARD TO THAT, AND I’M SORRY, I THINK WE SAID THE TIME, I’M NOT SURE WE SAID A.M. OR P.M., BUT 10:08, WHAT WAS IT, A.M. OR P.M.?

A: A.M.

Q: DID THAT CALL SUCCESSFULLY GO THROUGH?

A: NO, IT DID NOT.

Q: HOW DO YOU KNOW THAT?

A: ACCORDING TO THE SWITCH RECORDS, THE CALL FAILED.

Q: DO THOSE RECORDS INDICATE WHAT CELLULAR SITE RECEIVED THAT TELEPHONE CALL; THAT IS, THAT INITIAL CALL MADE AT 10:08 FROM MR. WESTERFIELD’S CELLULAR PHONE?

A: YES, IT DOES.

Q: ALL RIGHT.

WHERE IS THAT CELL. SITE LOCATED?

A: SOUTHPORT.

Q: DO YOU KNOW WHERE SOUTHPORT IS?

A: NO, I DO NOT.

Q: ALL RIGHT.

WITH REGARD TO THE RECORDS THAT YOU HAVE, IS THAT AN EXAMPLE OF A CELL. SITE WHERE YOUR RECORDS DON’T REFLECT THE EXACT LOCATION OF THAT SPECIFIC SITE?

A: YES.

Q: FOR THE REMAINDER OF THE TELEPHONE CALLS ON THOSE TWO DATES, DO YOUR RECORDS REFLECT THE LOCATION OF THOSE CELL. SITES?

A: YES.

Q: ALL RIGHT.

LET’S TURN TO THE NEXT TELEPHONE CALL AGAIN ON FEBRUARY 2ND. WHAT TIME OF THE DAY WAS THAT?

A: 10:46 A.M.

Q: WAS THAT CALL SUCCESSFUL?

A: YES.

Q: WHAT WAS THE NUMBER THAT WAS DIALED?

A: 858 679-5767.

Q: YOU DON’T HAVE INFORMATION ABOUT THE SUBSCRIBERS TO THOSE SPECIFIC PHONE NUMBERS, DO YOU?

A: NO.

Q: WAS THAT A SUCCESSFUL CALL? I’M SORRY. I MAY HAVE ASKED THAT.

A: YES.

Q: AND YOU DESCRIBED THE PHONE NUMBER. WHAT WAS THE DURATION OF THAT PHONE CALL?

A: FORTY-TWO SECONDS.

Q: DOES THE INFORMATION THAT YOU HAVE DESCRIBE WHAT CELL. SITE RECEIVED THAT CALL FROM THE CELLULAR PHONE?

A: YES.

Q: ALL RIGHT.

CAN YOU DESCRIBE THE LOCATION OF THAT CELL. SITE?

A: CELL. SITE NUMBER 397. THE NAME OF THE CELL. SITE IS 94/805, WHICH CORRESPONDS TO THE FREEWAYS. THE ADDRESS OF THAT CELL. SITE IS 4586 FEDERAL BOULEVARD IN SAN DIEGO.

Q: NOW, AGAIN, JUST SO THAT WE’RE CLEAR, THAT MEANS THAT’S THE CELL. SITE THAT RECEIVED THAT CALL, BUT NOT NECESSARILY THE CLOSEST CELL. SITE TO WHERE THE CALL WAS MADE FROM, IS THAT CORRECT?

A: CORRECT.

Q: IS THERE AN ISSUE OF CELL. SITE BEING CONGESTED THAT MAY OR MAY NOT FORCE A CALLER TO SEND THAT CALL THROUGH A CELL. SITE MORE DISTANT AWAY?

A: YES.

Q: HOW DOES THAT PROCESS WORK?

A: WELL, IT LOOKS FOR THE CLOSEST CELL. SITE. AND IF THAT ONE IS EITHER CONGESTED OR ANY OTHER TYPE OF FAILURE, IT WILL GO TOWARDS THE NEXT CLOSEST CELL. SITE AND ON DOWN THE LINE UNTIL IT CAN ACTUALLY CONNECT THE CALL.

Q: IS THAT WHY SOMETIMES YOU MAKE A CALL AND IT SEEMS LIKE A LITTLE WHILE BEFORE YOU EVER GET A DIAL TONE?

A: YES.

Q: LET’S TURN TO THE NEXT CALL IF WE COULD. WHAT TIME OF THE DAY WAS THAT ON FEBRUARY 2ND?

A: 11:10 A.M.

Q: DIALING WHAT NUMBER?

A: 858 679-8976.

Q: IS THAT THE SAME PHONE NUMBER AS I THINK THE FIRST ONE WE TALKED ABOUT THAT WAS A FAILURE?

A: YES.

Q: WAS THAT CALL SUCCESSFUL?

A: YES.

Q: WHAT WAS THE LENGTH OF THAT PHONE CALL?

A: EIGHTY-THREE SECONDS.

Q: AND CAN YOU TELL US, LASTLY, WHAT CELL. SITE WAS INVOLVED IN RECEIVING THAT PLACED TELEPHONE CALL?

A: CELL. SITE 490. THE NAME OF THE CELL. SITE IS CHULA VISTA DOWNTOWN. LOCATED AT 183 THIRD AVENUE IN CHULA VISTA.

Q: WHAT IS THE NEXT TELEPHONE CALL THAT YOUR RECORDS REFLECT?

A: AN INCOMING CALL AT 3:28 P.M.

Q: I DON’T THINK WE’VE DESCRIBED INCOMING CALL. WHAT DOES THAT MEAN?

A: WHEN SOMEBODY PLACES A CALL TO THE CELL. PHONE.

Q: IN OTHER WORDS, THE CELL. PHONE, INSTEAD OF BEING THE PHONE BEING USED TO DIAL OUT IS NOW BEING USED AS A RECEIVER OF A TELEPHONE CALL?

A: YES.

Q: CAN YOU TELL US WHAT THE RECORDS DESCRIBE ABOUT THAT PHONE CALL.

A: IT TELLS ME THE NUMBER THAT CALLED THE CELL. PHONE. AND THE CALL CAME FROM 858 679-8976. AND THAT CALL WENT TO VOICE MAIL.

Q: WHEN YOU SAY THAT CALL WENT TO VOICE MAIL, WHAT DOES THAT MEAN?

A: FOR WHATEVER REASON, EITHER THE CELL. PHONE WAS TURNED OFF OR IT WAS NOT GETTING A GOOD, STRONG SIGNAL TO RECEIVE THE CALL, IT WAS ROUTED TO THE CELL. PHONE OR THE VOICE MAIL.

Q: WHAT IS VOICE MAIL?

A: VOICE MAIL IS A MESSAGE ANSWERING SYSTEM.

Q: SO IF AN INDIVIDUAL HAS THEIR CELLULAR PHONE TURNED OFF AND SOMEONE PLACES A CALL TO THAT PERSON’S CELLULAR PHONE, YOUR SYSTEM THEN DIRECTS THAT CALL TO A MESSAGE OR ANSWERING-TYPE MACHINE? IS THAT A GOOD WAY OF PUTTING IT?

A: YES.

Q: COULD THOSE RECORDS BE CONSISTENT WITH SIMPLY THE INDIVIDUAL HAVING THEIR CELLULAR PHONE ON BUT NOT ANSWERING THE CALL?

A: YES.

Q: AND YOUR RECORDS CAN’T TELL THE DIFFERENCE?

A: NO, WE CANNOT.

Q: ALL RIGHT.

WHAT’S THE NEXT TELEPHONE CALL?

A: IT IS AT 5:31 P.M. AND THE DIALED NUMBER IS 858

679-5767.

Q: WAS THAT A SUCCESSFUL CALL?

A: YES, IT WAS.

Q: WHAT WAS THE LENGTH OF THAT CALL?

A: FORTY-EIGHT SECONDS.

Q: WHAT INFORMATION CAN YOU PROVIDE US ABOUT THE CELL. SITE THAT RECEIVED THAT PLACED CALL WHEN IT WAS INITIALLY DIALED?

A: THAT WAS CELL. SITE NUMBER 347. THE NAME OF THE CELL. SITE IS CARMEL POINT. THE ADDRESS OF THE CELL. SITE IS 15050 AVENUE OF SCIENCE, 101.

Q: ARE YOU FAMILIAR WITH WHERE THAT’S LOCATED?

A: NO, I’M NOT.

Q: ALL RIGHT.

THE NEXT CALL WAS AT WHAT TIME?

A: AT 5:45 P.M.

Q: AND WHAT INFORMATION CAN YOU PROVIDE US ABOUT THAT CALL?

A: THAT WAS AN INCOMING CALL FROM 858 679-8976.

Q: WHAT HAPPENED WITH RESPECT TO THAT CALL? WHEN YOU SAID INCOMING, —

A: THAT ALSO WENT TO VOICE MAIL.

Q: WITH, AGAIN, I ASSUME, THE SAME EXPLANATION AS THE PREVIOUS CALL, I THINK A COUPLE CALLS EARLIER, THAT ALSO WENT TO VOICE MAIL?

A: YES.

Q: WHAT ABOUT THE NEXT TELEPHONE CALL?

A: 6:12 P.M.

Q: AND CAN YOU PROVIDE US —

A: AND THE CELL. PHONE ACCESSED HIS VOICE MAIL.

Q: WHAT DOES THAT MEAN?

A: HE DIALED STAR 86, WHICH IS A WAY TO ACCESS MESSAGES ON YOUR VOICE MAIL.

Q: ALL RIGHT.

LET’S TALK A LITTLE BIT ABOUT THAT. WHEN YOU SAY DIAL STAR 86, WHAT DOES THAT MEAN?

A: IF YOU HAVE A MESSAGE WAITING IN YOUR VOICE MAIL, IF YOU DIAL STAR 86 AND SEND, THEN THAT ALLOWS YOU TO LISTEN TO ANY NEW VOICE MAIL MESSAGES.

Q: IS THAT SORT OF A SHORTHAND WAY SO YOU DON’T HAVE TO PRESS AS MANY NUMBERS TO CHECK IF THERE’S ANY MESSAGES THAT YOU RECEIVED ON YOUR CELLULAR PHONE NUMBER?

A: YES.

Q: WHAT WAS THE DURATION OF THAT CALL?

A: FIFTEEN SECONDS.

Q: LET ME BACK UP FOR JUST A MOMENT, IF I CAN. WHEN ONE HAS A CELLULAR PHONE AS PROVIDED BY VERIZON, HOW DOES THE INDIVIDUAL KNOW IF HE OR SHE HAS RECEIVED A MESSAGE TO ALERT THE PERSON TO DIAL IN TO CHECK WHAT THE MESSAGE IS?

A: YOUR CELL. PHONE WILL NOTIFY YOU.

Q: BY SOME MEANS?

A: EITHER A SOUND OR A SYMBOL ON A DISPLAY OF THE PHONE.

Q: WITH RESPECT TO THAT TELEPHONE CALL, AND I BELIEVE YOU SAID IT WAS A DIALING IN TO CHECK FOR MESSAGES, AND I THINK YOU DESCRIBED THE LENGTH, WHAT ABOUT THE CELL. SITE THAT WAS UTILIZED BY THE INDIVIDUAL DIALING IN TO CHECK FOR MESSAGES?

A: OKAY. THAT WAS CELL. SITE 486. THE NAME OF THE CELL. SITE IS MOUNT WOODSON. THE ADDRESS IS 17170 D MOUNT WOODSON ROAD.

Q: ARE YOU FAMILIAR WITH THE LOCATION OF MOUNT WOODSON IN SAN DIEGO COUNTY?

A: NO.

Q: ALL RIGHT.

LET’S GO TO THE NEXT CALL IF WE CAN.

A: AT 6:13 P.M. ANOTHER CALL TO STAR 86, WHICH IS TO ACCESS THE VOICE MAIL.

Q: I’M SORRY. WAS THIS CALL WHAT, HOW MUCH LATER THAN THE PREVIOUS CALL TO MOUNT WOODSON?

A: LET’S SEE. IT WAS ONE MINUTE AND EIGHT SECONDS LATER.

Q: WHAT WAS THE DURATION OF THIS NEXT CALL?

A: FORTY-THREE SECONDS.

Q: AND THROUGH WHAT CELL. SITE?

A: CELL. SITE 317. THE NAME OF THE CELL. SITE IS RAMONA. AND THE ADDRESS IS 18303 SPRING WAGON ROAD IN RAMONA.

Q: VERY GOOD.

CAN YOU DESCRIBE THE NEXT TELEPHONE CALL.

A: AT 6:15 P.M. AN OUTGOING CALL. AND THE NUMBER DIALED IS 858 679-8976. IT LASTED 136 SECONDS. AND THAT WAS THE SAME CELL. SITE NUMBER 317.

Q: LOCATED WHERE?

A: 18303 SPRING WAGON ROAD.

Q: IN RAMONA?

A: IN RAMONA.

Q: AND THE DURATION OF THAT CALL WAS WHAT, A LITTLE OVER TWO MINUTES?

A: YES.

Q: WHEN YOU BILL, DO YOU ROUND UP OR ROUND DOWN?

A: WE ROUND UP.

Q: WHAT IS THE NEXT CALL ON FEBRUARY 2ND THAT YOUR RECORDS REFLECT?

A: 7:33 OR — WELL, THERE IS A ROAMING CALL ON FEBRUARY 2ND.

Q: OKAY. LET’S TALK A LITTLE BIT ABOUT A ROAMING CALL.

FIRST OF ALL, ARE YOU REFERRING TO I THINK THE EARLIER OF THE TWO EXHIBITS, EXHIBIT 62, IF I REMEMBER RIGHT?

A: YES.

Q: LET’S TALK ABOUT A ROAMING CALL. WHAT DOES THAT TERM MEAN?

A: USING YOUR CELL. PHONE OUTSIDE OF YOUR LOCAL SERVICE PROVIDER’S DESIGNATED HOME AREA.

Q: WHAT IS THE SIGNIFICANCE OF THAT?

A: THERE’S DIFFERENT CHARGES FOR PHONE CALLS MADE WHILE YOU’RE ROAMING.

Q: SO IF YOU’RE OUT OF YOUR OWN SERVICE AREA AND YOU WANT TO MAKE A CALL, THEN YOU HAVE TO PAY FOR IT BASICALLY, IS THAT RIGHT?

A: USUALLY.

Q: WHAT DO THE RECORDS REFLECT ABOUT A PHONE CALL, AND I THINK YOU WERE ABOUT TO DESCRIBE IT FROM AGAIN THE SAME CELLULAR PHONE OF MR. WESTERFIELD’S, TELL US THE TIME AND THE INFORMATION THAT YOU CAN PROVIDE US FROM YOUR RECORDS.

A: OKAY. THIS WAS A CALL MADE IN THE VICINITY OF IMPERIAL VALLEY, WHICH IS IMPERIAL COUNTY IN CALIFORNIA. THIS OCCURRED ON FEBRUARY 2ND AT 10:26 P.M. THE NUMBER DIALED WAS 858 679-5767. AND THE CALL LASTED BETWEEN ONE MINUTE AND ONE SECOND AND TWO MINUTES. SO IT WAS ROUNDED UP TO TWO MINUTES.

Q: AND WAS THAT CALL SUCCESSFUL?

A: IT DOES NOT — THAT IS NOT CLEAR.

Q: IS THAT BECAUSE THE RECORDS ARE KEPT A LITTLE DIFFERENTLY FOR ROAMING CALLS AS OPPOSED TO CALLS MADE EXCLUSIVELY ON YOUR NETWORK?

A: YES.

Q: ARE THERE ANY OTHER CALLS MADE ON FEBRUARY 2ND?

A: NO.

Q: WHAT ABOUT FEBRUARY 3RD?

A: FEBRUARY 3RD AT 7:33 P.M., AN OUTGOING CALL TO 858 679-5767.

Q: WHAT WAS THE LENGTH OF THAT CALL?

A: 106 SECONDS.

Q: SO A LITTLE UNDER TWO MINUTES.

A: YES.

Q: CAN YOU TELL US ABOUT THE CELL. SITE INFORMATION WITH REGARD TO THAT CALL.

A: THAT IS CELL. SITE NUMBER 330. THE NAME OF THE CELL. SITE IS MIRA MESA. THE LOCATION OF THE CELL. SITE IS 9750 MIRAMAR ROAD, NUMBER 360.

Q: DO YOU KNOW GENERALLY WHAT AREA OF SAN DIEGO THAT’S IN?

A: NO.

Q: BUT IT’S ON MIRAMAR ROAD?

A: YES.

Q: ALL RIGHT.

MR. CLARKE: THANK YOU.

I HAVE NO FURTHER QUESTIONS, YOUR HONOR.

THE COURT: ALL RIGHT.

CROSS-EXAMINATION.

CROSS-EXAMINATION

BY MR. FELDMAN

Q: SIR, FROM THIS — I’M SORRY. GOOD MORNING.

A: GOOD MORNING.

Q: FROM THESE RECORDS CAN YOU TELL HOW MANY TELEPHONES BELONG TO THIS PARTICULAR ACCOUNT?

A: NO.

Q: ARE YOU ABLE TO SAY THAT ALL THE CALLS YOU’VE TESTIFIED TO SOURCED FROM THE SAME TELEPHONE OR SOURCED FROM THE SAME ACCOUNT?

A: FROM THE SAME TELEPHONE.

Q: IS THERE A SEPARATE SET OF RECORDS THAT THEN WOULD SHOW THE OTHER TELEPHONE OR TELEPHONES IF THEY EXISTED ON THIS ACCOUNT?

A: YES.

Q: WERE YOU ASKED TO LOOK FOR THOSE?

A: I APOLOGIZE. I GAVE YOU WRONG INFORMATION. EXHIBIT 62 IS — SHOWS TWO CELL. PHONES ON MR. WESTERFIELD’S ACCOUNT.

Q: BUT THE CALLS MR. CLARKE WAS JUST ASKING YOU ABOUT, THOSE WERE SPECIFIC TO WHICH NUMBER?

A: CELL. PHONE NUMBER 619 933-5203.

Q: AND WHAT WAS THE OTHER NUMBER?

A: 858 354-7975.

Q: AND YOU RESPONDED TO A SUBPOENA FROM THE DISTRICT ATTORNEY’S OFFICE, IS THAT RIGHT?

A: YES.

Q: AND DIDN’T THEY SUBPOENA THE RECORDS FOR 858 354-7975?

A: I DON’T KNOW.

Q: DID YOU BRING THOSE RECORDS TO COURT?

A: NO.

Q: THEY DIDN’T ASK YOU?

A: NO.

Q: BEFORE YOU CAME TO COURT, DID YOU HAVE ANY COMMUNICATIONS WITH ANY REPRESENTATIVE OF THE DISTRICT ATTORNEY’S OFFICE, SIR?

A: NO.

Q: DIDN’T TALK TO ANYBODY?

A: NO.

Q: SO YOU’VE NEVER DISCUSSED THE SUBJECT MATTER OF YOUR TESTIMONY WITH ANY REPRESENTATIVE OF THE PROSECUTION?

A: ONLY RIGHT BEFORE I CAME INTO COURT TODAY.

Q: SO YOU HAD SOME DISCUSSION AT LEAST SO YOU COULD GET ORIENTED AS TO WHAT WAS GOING TO HAPPEN TODAY.

A: EXACTLY.

Q: DID YOU TAKE ANY NOTES TO ASSIST YOU IN PREPARING FOR YOUR TESTIMONY, SIR?

A: YES.

Q: DO YOU HAVE A COPY OF THOSE NOTES WITH YOU?

A: YES.

Q: DID YOU REVIEW THOSE NOTES TO ASSIST YOU IN TESTIFYING?

A: YES.

MR. FELDMAN: YOUR HONOR, CAN I HAVE A COPY, PLEASE?

THE COURT: CERTAINLY. IF HE’S GOT THEM.

MR. FELDMAN: HE’S GOT THEM.

BY MR. FELDMAN:

Q: SIR, ARE THESE — YOU’RE GIVING ME A PIECE OF PAPER, IS THAT RIGHT?

A: YES.

Q: I GOT TO MAKE A RECORD.

A: IT’S NOT A COPY. THAT’S THE ORIGINAL.

Q: OKAY.

YOU HANDED ME A PIECE OF PAPER, THAT’S RIGHT?

A: YES.

Q: THE PIECE OF PAPER IS THE NOTES OR I GUESS REPRESENTS THE NOTES THAT YOU’VE MADE, IS THAT RIGHT, SIR?

A: YES.

Q: AND THIS IS THE DOCUMENT, — IS THIS THE ONLY SET OF NOTES THAT YOU PREPARED?

A: YES.

Q: DID YOU GIVE THE PROSECUTOR A COPY?

A: YES.

Q: WHEN?

A: BEFORE WE CAME INTO COURT.

Q: HMM.

WHICH PROSECUTOR DID YOU GIVE THE COPY TO?

A: GEORGE.

Q: MR. CLARKE?

A: MR. CLARKE.

MR. FELDMAN: FOR THE RECORD, YOUR HONOR, I THINK THIS PROBABLY IS APPROPRIATE TO BE MARKED AS A COURT EXHIBIT, ISN’T IT, I BELIEVE?

THE COURT: IF YOU WOULD LIKE TO.

MR. FELDMAN: YES.

THE COURT: 64.

MR. FELDMAN: PLEASE.

(HANDWRITTEN NOTES MARKED TRIAL EXHIBIT NUMBER 64

FOR IDENTIFICATION.)

BY MR. FELDMAN:

Q: I THINK YOU’LL GET A COPY OF THESE BACK, BUT YOU’RE LIABLE TO LOSE THEM FOR TODAY, BUT YOU’LL GET THEM BACK. ALL RIGHT.

WITH REGARD, SIR, — WITH REGARD — I THINK WHAT YOU’RE TELLING US IS THAT WHEN WE USE OUR CELL. PHONES, AND WE MAKE A PHONE CALL, I GUESS THE SIGNAL GOES OUT AND ROUTES SOME PLACE. IS THAT A FAIR STATEMENT?

A: YES.

Q: AND IT BOUNCES AROUND UNTIL IT FINDS I THINK AS MR. CLARKE PUT IT SOME KIND OF TRANSMITTER OR ANTENNA.

A: YES.

Q: YOU CAN’T TELL IF I TRY AND MAKE A PHONE CALL IN THIS COURTROOM WHICH CELL. SITE IT MIGHT BOUNCE OFF OF, IS THAT RIGHT?

A: REPEAT THE QUESTION.

Q: IF I WAS TO TRY AND MAKE A PHONE CALL IN THE COURTROOM, I MEAN WE’RE IN DOWNTOWN SAN DIEGO, IT’S 220 WEST BROADWAY, — WHOOPS.

THE COURT: THERE WILL BE A WHOLE SERIES OF NOTES COMING. THANKS. THANKS, MR. FELDMAN.

MR. FELDMAN: I’M SORRY. YES. SORRY.

BY MR. FELDMAN

Q: IF WE MAKE THE CALL IN DOWNTOWN SAN DIEGO AT THIS BUILDING, IT WILL ROUTE OUT INTO SOME — INTO THE UNIVERSE, RIGHT?

A: YES.

Q: AND IT BOUNCES AROUND UNTIL IT FINDS A CELL. SITE, RIGHT?

A: YES.

Q: WHERE IS THAT CELL. SITE GOING TO BE?

A: IT’S UNDETERMINED.

Q: IF I TURN MY CELL. PHONE ON IN THE COURTROOM AND I HIT THE BUTTON SEND, IT KEEPS SAYING CALL FAILED. ARE YOU GOING TO BILL ME FOR THAT?

A: GENERALLY NO.

Q: SOMETIMES YES?

A: IN SAN DIEGO, NO. THERE ARE OTHER MARKETS, OTHER CITIES, THAT MAY BILL YOU FOR THAT.

Q: RAMONA?

A: NO.

Q: IMPERIAL COUNTY?

A: NO.

Q: LOS ANGELES?

A: NO.

Q: BECAUSE VERIZON COVERS THAT GENERAL AREA, IS THAT RIGHT?

A: CORRECT.

Q: AND VERIZON, YOU GUYS USED TO BE PAC. BELL, DIDN’T YOU, OR DID PAC. BELL BECOME YOU?

A: AIRTOUCH CELLULAR.

Q: THANK YOU.

MY CELL. PHONE NOW, I JUST HIT THE BUTTON ON IT, IS TELLING ME IT’S SEARCHING. WHAT DOES THAT MEAN?

A: IT’S TRYING TO COMPLETE THE CALL.

Q: MEANING THAT IT’S TRYING TO LOCATE AN ANTENNA TO BOUNCE THE SIGNALS OFF SO THAT I COULD CALL SOMEONE, IS THAT RIGHT?

A: YES.

Q: BUT IT FAILED. WHY?

A: THERE COULD BE A VARIETY OF REASONS.

Q: CAN YOU TELL ME THAT VARIETY OF REASONS, PLEASE.

A: EITHER A PROBLEM WITH THE CELL. SITE.

Q: YES.

A: A DEFECTIVE HANDSET, CELL. PHONE.

Q: OKAY.

A: A CONGESTED CELL. SITE.

Q: I’M SORRY. WHAT DOES THAT MEAN?

A: THERE’S TOO MUCH TRAFFIC ON A GIVEN CELL. SITE.

Q: MEANING THERE’S TOO MANY PEOPLE AT THE SAME TIME USING OR ATTEMPTING TO USE PHONES THAT WILL HIT THAT SITE, IS THAT RIGHT?

A: YES.

Q: OKAY.

ANY OTHER REASON?

A: YES. BASICALLY — I MEAN THEY COULD — THE BATTERY COULD DIE IN THE MIDDLE OF THE CALL.

Q: IF THE BATTERY DIES, A PERSON COULD GET VOICE MAIL ON A DEAD BATTERY, RIGHT?

A: USING ANOTHER PHONE.

Q: YOU MEAN IF MY BATTERY DIES AND HYPOTHETICALLY MY WIFE CALLS ME, ISN’T THERE AN AUTOMATIC KIND OF VOICE MAIL SYSTEM SO SHE CAN LEAVE ME A MESSAGE EVEN THOUGH MY PHONE IS DEAD?

A: I’M SORRY. I THOUGHT YOU MEANT OUTGOING. YES. INCOMING A VOICE MAIL WILL WORK WITH A DEAD BATTERY.

Q: SO IF THE DEAD — BATTERY IS DEAD, YOU CAN GET VOICE MAIL?

A: YES.

Q: YOU CAN JUST NOT USE YOUR CELL. PHONE TO ACCESS IT, IS THAT RIGHT?

A: YES.

Q: IF I HAD VOICE MAIL ON MY DEAD CELL. PHONE AND I CALLED FROM THE COURT TELEPHONE MY CELL. PHONE NUMBER, COULD I ACCESS MY VOICE MAIL?

A: YES.

Q: HOW WOULD THAT LOOK ON YOUR PHONE RECORDS?

A: IT WOULD SHOW A CALL TO THE CELL. PHONE.

Q: OH. SO IT WOULD SHOW AN INCOMING CALL TO THE CELL. PHONE AND THEN COULD YOU THEN MAKE THE SECONDARY DETERMINATION AS TO WHETHER OR NOT I WAS CHECKING MY VOICE MAIL?

A: YES.

Q: AND HOW IN THE RECORDS WOULD WE SEE THAT?

A: I DO NOT HAVE ACCESS TO THAT, AND I DID NOT BRING ANY DOCUMENTS THAT SHOW THAT.

Q: YOU THINK IT CAN BE DONE, THOUGH?

A: IT CAN BE DONE.

Q: I’M SORRY. SINCE YOU DON’T HAVE THE RECORDS, I GOT TO ASK YOU, JUST YOU ARE SURE ABOUT THAT.

A: YES.

Q: OKAY.

I NOTE THAT YOU APPEAR TO HAVE ONLY BROUGHT RECORDS FOR FEBRUARY 2ND AND FEBRUARY 3RD. WHAT ABOUT FEBRUARY 4TH; DID YOU GET ASKED FOR RECORDS ON FEBRUARY THE 4TH?

A: YES.

Q: DID YOU BRING THOSE?

A: YES.

Q: AND THE 5TH?

A: YES.

Q: AND THE 6TH?

A: YES.

Q: AND THE 7TH?

A: NO.

Q: YOU JUST REPLIED TO THE REQUEST FROM THE PROSECUTION?

A: YES.

Q: WHAT ABOUT SIGNAL STRENGTH; IS THERE SOMETHING CALLED SIGNAL STRENGTH?

A: YES.

Q: DOES SIGNAL STRENGTH REFLECT ON MY CELL. PHONE?

A: YES.

Q: HOW DO I KNOW?

A: THERE SHOULD BE A SYMBOL ON THE DISPLAY OF YOUR PHONE. LOOKS LIKE AN ANTENNA WITH BARS OF SIGNAL STRENGTH.

Q: AND THE MORE BARS I GOT THE BETTER THE SIGNAL RECEPTION IN THEORY, RIGHT?

A: YES.

Q: SO IN A CELL. PHONE LIKE THE ONE I HAVE, WHICH COINCIDENTALLY IS SIMILAR TO THE ONE COUNSEL MAY HAVE, I GOT REALLY GOOD SIGNAL STRENGTH, DON’T I?

A: THAT IS — I BELIEVE THAT PHONE HAS FIVE BARS OF SIGNAL, AND YOU HAVE TWO OUT OF FIVE.

Q: OKAY.

IS THAT GOOD? DOES THAT AFFECT MY ABILITY TO RECEIVE CALLS, SIR?

A: VERY MINIMALLY.

Q: DOES IT AFFECT MY ABILITY TO CALL OUT?

A: VERY MINIMALLY.

Q: SO I’M NOW TRYING TO DIAL MY OFFICE. OKAY. BUT IF I WALK AROUND THE COURTROOM, DOES THE CELL. OR THE SIGNAL STRENGTH DROP OR POTENTIALLY DROP?

A: IT CAN.

Q: JUST FROM BEING IN THIS ROOM, IS THAT RIGHT?

A: YES.

Q: AND IF, EVEN THOUGH I MIGHT HAVE TWO BARS, I’M STANDING AT THE WITNESS STAND, I CAN GET A SIGNAL, I’M STANDING AT COUNSEL TABLE I CAN’T GET A SIGNAL, CAN YOU EXPLAIN THAT TO ME, PLEASE?

A: WELL, THE RADIO SIGNAL THAT IS EMITTED FROM THE CELL. PHONE CONSTANTLY CHANGES. AND IT HAS TO DO WITH ATMOSPHERIC CONDITIONS, PROXIMITY TO ANY BUILDING STRUCTURES, LIKE A WALL. AND THAT CAN AFFECT THE SIGNAL STRENGTH.

Q: AND SOMETIMES YOU COULD PLACE A CALL EVEN TO YOUR OWN VOICE MAIL AND THE CALL WILL DROP, IS THAT RIGHT?

A: YES.

Q: WHAT DOES THAT MEAN?

A: A LOW SIGNAL. GENERALLY A LOW SIGNAL.

Q: WELL, I USE THE WORD DROP, AND YOU’RE THE PRO. ALL I KNOW IS I’M TRYING TO TALK ON THE PHONE AND SUDDENLY THE PERSON I’M TALKING TO ISN’T THERE. ARE WE COMMUNICATING ON THAT ISSUE?

Q: IF I’M TALKING TO SOMEBODY OR I’M TRYING TO TALK TO SOMEBODY AND THE CALL DROPS, THAT WILL SHOW ON YOUR RECORDS, WON’T IT?

A: NO.

Q: IT WILL SHOW A BILL, THOUGH, OF AN OUTGOING CALL?

A: YES.

Q: YOU WON’T KNOW WHETHER OR NOT THE CALL DROPPED, IS THAT RIGHT?

A: THERE IS A WAY, BUT I DID NOT BRING DOCUMENTS FOR THAT.

Q: SO YOU CAN’T TELL US WITH REGARD TO THE PHONE CALLS YOU TESTIFIED TO WHETHER OR NOT ANY OF THOSE CALLS WERE DROPPED, IS THAT RIGHT?

A: YES.

Q: AND THERE’S ALSO CERTAIN PARTS OF OUR COUNTY AND THE COMMUNITY WHERE IT’S DIFFICULT TO GAIN CELL. ACCESS, ISN’T THAT RIGHT?

A: YES.

Q: FOR INSTANCE, PEOPLE DRIVING DOWN THE HILL FROM 805 UP CROSSING 8, THAT’S A DIFFICULT PLACE TO GET SIGNALS, HUH?

A: I DON’T KNOW.

Q: BUT YOU DO KNOW THAT EVEN THOUGH YOUR BUSINESS PROVIDES CELL. PHONE SERVICE FOR OUR COUNTY, THERE ARE CERTAIN AREAS OF THE COUNTY WHERE IT JUST DOESN’T WORK, IS THAT RIGHT?

A: YES.

Q: EVEN THOUGH WITHIN A HUNDRED YARDS ONE WAY OR A HUNDRED YARDS ANOTHER WAY YOU CAN GET SERVICE, RIGHT?

A: YES.

Q: SO THE FACT THAT THERE’S A CALL THAT’S MADE WE’LL SAY SIXTY-THREE SECONDS BETWEEN ONE CALL AND ANOTHER, THAT’S REALLY OF VERY LITTLE CONSEQUENCE, ISN’T IT? YOU CAN’T TELL WHAT’S GOING ON, CAN YOU?

A: YES.

Q: WHEN YOU SAY YES, WHAT DO YOU MEAN?

A: NO, YOU CANNOT TELL WHAT’S GOING ON.

Q: SO THE FACT THAT TWO CALLS MIGHT BE PLACED WITHIN A SHORT PERIOD OF TIME TO, WE’LL SAY, 679-8976 — DID YOU CHECK TO SEE WHOSE HOUSE IS 679-8976?

A: NO.

Q: SO YOU DON’T KNOW WHETHER OR NOT THAT’S MR. WESTERFIELD’S HOME NUMBER, HUH?

A: NO.

Q: DID YOU KNOW THAT HE MIGHT HAVE BEEN CALLED — WHAT HE WAS DOING MAKING THOSE PHONE CALLS?

A: NO.

Q: DID YOU KNOW WHETHER OR NOT HE WAS TRYING TO TALK TO HIS SON?

MR. CLARKE: OBJECTION. CALLS FOR SPECULATION.

THE WITNESS: NO.

THE COURT: SUSTAINED.

WELL, THE ANSWER WAS NO. IT WILL STAND.

MR. FELDMAN: I MIGHT HAVE USED THE WRONG NUMBER.

679-5767.

BY MR. FELDMAN:

Q: DO YOU KNOW WHETHER OR NOT THAT’S MR. WESTERFIELD’S PHONE NUMBER?

A: NO.

Q: AND WHEN YOU TOLD MR. CLARKE THAT WITH REGARD TO THE CELL. SITES THAT ARE REFLECTED IN THE BILL, THE CELL. SITES DO NOT NECESSARILY INDICATE WHERE THE CALLER WAS AT THE TIME THE CALL WAS PLACED, CORRECT?

A: CORRECT.

Q: SO WHAT WOULD YOU ESTIMATE TO BE THE MAXIMUM DISTANCE AN INDIVIDUAL COULD BE BEFORE HE MIGHT GET ROUTED — I THOUGHT YOU SAID ONE OF THOSE CALLS WAS IN SOUTH COUNTY.

A: SOUTHPORT

Q: I’M SORRY?

A: SOUTHPORT?

Q: WHERE’S SOUTHPORT?

A: I DON’T KNOW.

Q: IT’S IN CALIFORNIA?

A: YES.

Q: YOU SURE OF THAT?

A: YES.

Q: BUT YOU JUST DON’T KNOW WHERE IN CALIFORNIA?

A: IT’S IN SAN DIEGO COUNTY.

Q: OKAY.

IF I MAKE A PHONE CALL IN NORTH SAN DIEGO COUNTY AND THE CELL. SITES ARE OCCUPIED AS YOU HAVE PUT IT, IS IT CONCEIVABLE YOUR SYSTEM MIGHT BOUNCE ME AROUND TO SOUTH COUNTY BEFORE I CAN GET A CELL.?

A: NO.

Q: HOW FAR — WHAT’S THE MAXIMUM DISTANCE, IF YOU KNOW?

A: UNDER OPTIMUM CONDITIONS, IT COULD TRANSMIT FOR HUNDREDS OF MILES. BUT THAT’S EXTREMELY, EXTREMELY RARE. UP TO FIFTEEN MILES IS GENERALLY THE MAXIMUM.

Q: WELL, YOU GAVE ME A DISTANCE OF BETWEEN HUNDREDS OF MILES AND FIFTEEN MILES. THAT’S A PRETTY BIG GAP, ISN’T IT?

A: YES.

Q: ARE YOU AWARE OF ANY STUDIES THAT YOUR COMPANY’S DONE TO GET IT ANY MORE PRECISE THAN BETWEEN FIFTEEN MILES AND HUNDREDS OF MILES?

A: NO.

Q: SO WHERE BETWEEN HUNDREDS OF MILES AND FIFTEEN MILES WE CAN ASSUME THE CALLER WAS WHEN WE SEE THE RECORD REFLECTS, FOR INSTANCE, SOUTHPORT?

A: YES.

Q: BUT YOU CAN’T TELL US WHERE?

A: NO.

Q: AND I’M SORRY, YOU TOLD US YOU BILLED UP. I KNOW THAT MR. CLARKE WAS PROBABLY TEASING YOU ON THAT, BUT I THINK YOU TESTIFIED TO A FIFTEEN-SECOND CALL. I THOUGHT I HEARD YOU SAY BETWEEN FIFTEEN SECONDS AND A MINUTE. I’M JUST ASKING YOU, SIR, FOR CLARIFICATION ON THAT. I DIDN’T UNDERSTAND WHETHER YOU WERE TELLING US THAT THERE WAS A FIFTEEN-SECOND CALL OR WHETHER THE CALL LASTED BETWEEN FIFTEEN SECONDS AND A MINUTE.

A: THAT WAS THE ROAMING CALL PLACED IN THE VICINITY OF IMPERIAL COUNTY.

Q: IS GLAMIS IN IMPERIAL COUNTY?

A: EXCUSE ME?

Q: IS GLAMIS IN IMPERIAL COUNTY?

A: I DON’T KNOW.

Q: IS SUPERSTITION MOUNTAIN?

A: I DON’T KNOW.

Q: HOW ABOUT BORREGO, IS BORREGO IN IMPERIAL COUNTY?

A: NO.

Q: IS IT CONCEIVABLE THAT A CALL COULD BE PLACED FROM BORREGO AND IT MIGHT CELL. BOUNCE INTO IMPERIAL COUNTY?

A: YES.

Q: SO AGAIN THIS IS A CIRCUMSTANCE WHERE THAT ROAMING CALL EVEN YOU CAN’T TELL US WHERE THAT WAS PLACED EITHER.

A: NO.

Q: IS THE ISSUE OF ROAM CALLS ANY DIFFERENT THAN THE ISSUE IN TERMS OF YOUR ABILITY TO IDENTIFY THE LOCATION OF THE CALL? IS IT ANY DIFFERENT BECAUSE A PERSON IS ON ROAM AS OPPOSED TO NOT ON ROAM?

A: IT WOULD REQUIRE DOCUMENTS SUPPLIED FROM THE CELLULAR PROVIDER IN IMPERIAL COUNTY WHICH I DID NOT BRING.

Q: ALL RIGHT.

YOU BROUGHT WHAT YOU WERE ASKED TO BRING.

A: YES.

MR. FELDMAN: EXCUSE ME JUST FOR A MINUTE, PLEASE.

(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN

AND MR. BOYCE.)

MR. FELDMAN: I WOULD JUST LIKE A COPY OF THE WITNESS’ —

THE COURT: WE WILL MAKE THEM AVAILABLE.

MR. FELDMAN: HE CAN HAVE THEM BACK.

THE COURT: THEY ARE MARKED.

MR. FELDMAN: YES. AND I HAVE NO FURTHER —

MR. BOYCE: COULD WE HAVE ONE FURTHER. . .

MR. FELDMAN: I’M SORRY, JUDGE.

(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN

AND MR. BOYCE.)

BY MR. FELDMAN:

Q: SIR, IN YOUR RECORDS ON FEBRUARY THE 4TH AT APPROXIMATELY 2:06 P.M., IT SHOWS VOICE MAIL AND THEN IT HAS 000 FRONT SLASH SEVEN ZEROES AND THEN IT SAYS F. W. WHAT DOES THAT MEAN?

A: WHAT WAS THE TIME AGAIN?

Q: 2/4. FEBRUARY THE 4TH AT 2:36. I’M SORRY. 2:06. AND IT SAYS P. I ASSUME THAT’S 2:06 P.M.

A: NO. THAT IS — YES, 2:06 P.M. THAT IS AN INCOMING CALL THAT REACHED THE VOICE MAIL.

Q: OKAY.

WHAT DOES THE F. W. MEAN, SIR?

A: IT WAS FORWARDED TO THE VOICE MAIL.

Q: OKAY.

YOU CAN’T TELL THE SOURCE OF THAT CALL, IS THAT RIGHT?

A: LET ME SEE IF IT’S ON MY DOCUMENTS.

NO, IT DOES NOT SAY THE ORIGINATING NUMBER.

Q: RIGHT UNDER THE PHONE CALL I JUST DIRECTED YOUR ATTENTION TO, 2/4, AT 2:06, IT INDICATES 2/4 AT 2:35 P.M., AND IT SAYS ONE MIN FREE. DO YOU SEE THAT, SIR?

A: YES.

Q: WHAT DOES THAT MEAN?

A: THAT WAS AN INCOMING CALL.

Q: YES.

A: AND THE CALL LASTED FOR LESS THAN A MINUTE OR EXACTLY A MINUTE, AND ACCORDING TO THIS PERSON’S BILLING RATE, HE GETS ONE MINUTE FREE, THE FIRST INCOMING MINUTE FREE.

Q: BUT ON THE RIGHT COLUMN OF THESE DOCUMENTS THAT YOU’VE PROVIDED, IF YOU LOOK TO THE TOTAL CHARGES ALL THE WAY DOWN THE COLUMN OF EXHIBIT 62, IT SAYS TOTAL CHARGE ZERO, DOESN’T IT?

A: YES.

Q: SO APPARENTLY THAT MEANS THE PERSON THAT PURCHASED THE PLAN WHICH ALLOWED A CERTAIN AMOUNT OF MINUTES AT NO ADDITIONAL COST, IS THAT RIGHT?

A: YES.

Q: SO THAT, THEREFORE, WOULDN’T ALL OF HIS CALLS MORE OR LESS BE FREE?

A: YES.

Q: WHY WOULD THERE BE A NEED, THEN, TO HAVE A SEPARATE IDENTIFIER AS FREE?

A: I DON’T KNOW.

(DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN

AND MR. BOYCE.)

BY MR. FELDMAN:

Q: SIR, ON FEBRUARY THE 5TH WE SEE A SERIES OF CALLS, IN PARTICULAR ONE AT 8:05 A.M. DO YOU SEE THAT, SAYS VOICE MAIL?

A: ON FEBRUARY 5TH AT 8:05 A.M.?

Q: IT SAYS FEBRUARY 5 AT 8:30 A.M. IF I MISSPOKE, I’M SORRY.

A: 8:30. OKAY. YES.

Q: THAT SAYS VOICE MAIL AND ONE AT 9:04 A.M. IS THAT RIGHT?

A: YES.

Q: AGAIN VOICE MAIL, IS THAT RIGHT?

A: YES.

Q: AT 10:07 A.M. AGAIN VOICE MAIL, IS THAT RIGHT?

A: YES.

Q: AT 11:12 A.M., AGAIN VOICE MAIL, WAS THAT RIGHT?

A: YES.

Q: AT 12:08, NOW IT’S P.M., JUST SHORTLY AFTER NOON ON THE 5TH. CONTINUES TO BE VOICE MAIL, RIGHT?

A: YES.

Q: 2:21 P.M. SAME?

A: YES.

Q: 3:32 P.M. SAME?

A: YES.

Q: 6:38 P.M. SAME?

A: YES.

Q: 10:07 P.M. SAME?

A: YES.

Q: 10:14 P.M. SAME?

A: YES.

Q: LOOK TO YOU LIKE SOMEBODY IS TRYING TO REACH THAT PERSON?

A: YES.

Q: NOT GETTING ANY SUCCESS, HUH?

A: I DON’T KNOW.

Q: THEN ON THE 6TH OF FEBRUARY WE SEE A PHONE CALL AT 7:34 A.M. TO VOICE MAIL, CORRECT?

A: YES.

Q: AND ONE AT 8:20 A.M., CORRECT?

A: YES.

Q: AND ONE AT 9:08 A.M.?

A: CORRECT. YES.

Q: ONE AT 11:20 A.M., CORRECT?

A: YES.

Q: ANOTHER ONE AT 11:20 A.M.?

A: YES.

Q: HOW DID THAT HAPPEN?

A: IF THE CLOCK SAYS 11:20 AND FIVE SECONDS, —

Q: YES.

A: — THEN THAT WOULD EXPLAIN THE FIRST 11:20. IF THEY THEN HUNG UP AND REDIALED AT 11:20 AND THIRTY-FIVE SECONDS, THAT WOULD ALSO SHOW AS 11:20.

Q: AND THEN AT 2:25 P.M. ON THE 6TH, RIGHT?

A: YES.

Q: 2:48 P.M. ON THE 6TH, RIGHT?

A: YES.

Q: STILL LOOKS LIKE SOMEBODY’S TRYING TO REACH THAT PERSON, HUH?

A: YES.

Q: FINALLY WE SEE AT 2:06 — ON 2/6 AT 2:51 P.M., IT SAYS M. M. RETRIEVED. WHAT DOES THAT MEAN?

A: THAT STANDS FOR MESSAGE MANAGER RETRIEVE.

Q: I’M SORRY. WHAT DOES MESSAGE MANAGER MEAN?

A: FANCY WORD FOR VOICE MAIL.

Q: OH. OKAY.

AND THEN AT — ON FEBRUARY THE 6TH AT 2:52 P.M. M. M. RETRIEVE APPEARS AGAIN, RIGHT?

A: YES.

Q: AND THAT’S — AND THEN THERE’S A NUMBER THAT SAYS

933-5203, RIGHT?

A: YES.

Q: THE COPY OF EXHIBIT 62 HAS BLACKOUTS ON IT. WHY?

A: THEY WERE — THOSE DATES WERE NOT SUBPOENAED.

Q: WHO MADE THE DECISION TO DO THE BLACKING OUT, YOU?

A: NO.

Q: YOUR COMPANY?

A: I DON’T KNOW.

Q: WELL, DO YOU KNOW WHETHER OR NOT THE RECORDS WERE ORIGINALLY PROVIDED TO THE DISTRICT ATTORNEY’S OFFICE BLACKED OUT?

A: YES.

Q: THEY WERE?

A: YES.

MR. FELDMAN: THANK YOU VERY MUCH.

NO FURTHER QUESTIONS.

THE COURT: ANYTHING FURTHER, MR. CLARKE?

MR. CLARKE: YES. THANK YOU, YOUR HONOR.

REDIRECT EXAMINATION

BY MR. CLARKE:

Q: MR. SHEETS, I WANT TO TALK ABOUT CONGESTION. I THINK YOU MENTIONED THAT IF A CELL. SITE HAS A LOT OF CALLS GOING ON THAT A CALL THAT’S PLACED WILL BE ROUTED OR ATTEMPT TO BE ROUTED TO ANOTHER CELL. SITE. IS THAT RIGHT?

A: YES.

Q: IS THERE ANY DIFFERENCE IN TERMS OF CONGESTION OF CELL. SITES OF WEEKDAYS VERSUS WEEKENDS?

A: YES.

Q: CAN YOU EXPLAIN THAT?

A: GENERALLY THE WEEKDAYS ARE THE HEAVIEST TIMES FOR CELL. PHONE USAGE AND THAT CAUSES MORE CONGESTION DURING THOSE TIMES, DURING THOSE DAYS.

Q: IT’S THAT WAY ON THE — AT LEAST ON THE PLAN I HAVE I GOT A LOT OF MINUTES INCLUDED ON THE WEEKENDS, BUT NOT NEARLY AS MANY DURING THE WEEK.

A: YES.

Q: IS IT THEN THE CASE THAT ONE — IF ONE MAKES A PHONE CALL ON A WEEKEND, IT’S MORE LIKELY OR MUCH MORE LIKELY OR HOWEVER YOU CAN PROPERLY CHARACTERIZE IT TO OBTAIN A SIGNAL FROM THE NEAREST SITE THAT ONE CAN GET RECEPTION FROM?

A: YES.

Q: I’M SORRY. I THINK I GAVE YOU A CHOICE OF A FEW OPTIONS. IS IT MORE LIKELY, MUCH MORE LIKELY. YOUR WORDS, PLEASE.

Q: MORE LIKELY.

Q: THAT EXHIBIT 62, AND I THINK THAT’S THE FIRST DOCUMENT THAT REFLECTS TELEPHONE RECORDS, IS THAT RIGHT?

A: YES.

Q: DOES THAT DOCUMENT ALSO ACTUALLY CONTAIN THE TELEPHONE CALLS MADE FOR THE SECOND TELEPHONE NUMBER IN MR. WESTERFIELD’S NAME?

A: YES.

Q: AND DOES IT DETAIL THE TELEPHONE CALLS BY DATES ACCORDING TO WHAT WAS SOUGHT IN THE SUBPOENA?

A: YES.

Q: COULD YOU TAKE A MOMENT TO TAKE A LOOK AT THAT PORTION OF EXHIBIT 62. DOES IT REFLECT ANY CALLS MADE ON FEBRUARY 1ST?

A: YES.

Q: DOES IT SHOW ANY CALLS MADE ON FEBRUARY 2ND?

A: NO.

Q: WHAT ABOUT FEBRUARY 3RD?

A: NO.

Q: WHAT ABOUT FEBRUARY 4TH?

A: NO.

Q: ALSO THE ONE-PAGE EXHIBIT THAT MR. FELDMAN HAD MARKED, I THINK IT’S EXHIBIT 64. I THINK IT’S OFF TO YOUR RIGHT. IS THAT CORRECT?

A: YES.

Q: THOSE NOTES, IS THAT YOUR HANDWRITING?

A: NO.

Q: WHOSE IS IT, TO YOUR KNOWLEDGE?

A: YOURS.

Q: DID I PROVIDE YOU SOMETHING TO ACT AS AN AID TO YOU IN DETERMINING CELL. SITE LOCATIONS?

A: YES.

Q: THE DOCUMENTS CONTAINED IN EXHIBIT, AND I THINK IT’S 63, ARE THOSE THE DOCUMENTS THAT ALLOW THE IDENTIFICATION OF THE SPECIFIC CELL. SITE?

A: YES.

Q: ARE THERE AT LOT OF CELL. SITES IN SAN DIEGO COUNTY?

A: YES.

Q: AND ARE THEY EVEN IN NUMERICAL ORDER ON THOSE SERIES OF DOCUMENTS IN EXHIBIT 63 THAT DESCRIBE THE LOCATIONS OF THE CELL. SITES?

A: NO.

Q: DOES IT TAKE A WHILE TO LOOK THEM UP?

A: YES.

Q: DID YOU ALSO PLACE SOME OF YOUR OWN NOTES ON EXHIBIT 63?

A: 63. NO.

Q: DID YOU HAVE AN OPPORTUNITY THIS MORNING TO VERIFY THE PORTION IN MY HANDWRITING AND ITS ACCURACY WITH THE EXHIBIT 62 AND 63 THAT YOU HAVE BEFORE YOU?

A: YES.

Q: WERE THEY, INDEED, ACCURATE?

A: YES.

Q: INCIDENTALLY, WHEN A BATTERY IS DEAD, CAN A PERSON MAKE A SUCCESSFUL PHONE CALL ON A CELLULAR PHONE?

A: NO.

Q: AND IN FACT GOING BACK TO THAT TELEPHONE CALL ON FEBRUARY 2ND AT 10:26 P.M., IS THAT THE RIGHT TIME?

Q: LASTLY, MR. SHEETS, WITH REGARD TO THAT SERIES OF TELEPHONE CALLS THAT MR. FELDMAN ASKED YOU ABOUT ON FEBRUARY 5TH AND FEBRUARY 6TH, THEY WERE ALMOST ALL LABELED VOICE MAIL, IS THAT CORRECT?

A: YES.

Q: ARE THOSE CALLS MADE FROM A CELLULAR PHONE OR A LAND-BASED PHONE FOR LACK OF A BETTER TERM OR CAN YOU TELL?

A: I DON’T KNOW.

Q: THOSE CALLS DON’T REFLECT THE NUMBER THAT WAS ACTUALLY BEING DIALED FROM, IS THAT CORRECT?

A: NO.

Q: WHAT ARE THE REASONS FOR THAT?

A: THAT WOULD REQUIRE A DOCUMENT ONLY FROM OUR SWITCH RECORDS. THAT IS NOT PROVIDED DURING THE NORMAL COURSE OF BUSINESS TO A CUSTOMER.

Q: IF A LAND-BASED PHONE, SOMEBODY IN AN OFFICE USING A REGULAR WIRED PHONE, HAD CALLER I.D., I’M SORRY, NOT CALLER I.D., CALLER BLOCKING, — IS THAT A TERM, FIRST OF ALL, YOU ARE FAMILIAR WITH?

A: CALLER BLOCKING, YES.

Q: WHAT IS THAT?

A: IF YOU PLACE AN OUTBOUND CALL AND YOUR PHONE IS CALLER I.D. BLOCKED, THEN YOUR NUMBER WILL NOT SHOW UP ON SOMEONE ELSE’ CALLER I.D.

Q: COULD THAT BE AN EXPLANATION FOR WHY THOSE PHONE NUMBERS ARE NOT EXPLAINED THERE WITH REGARD TO THAT SERIES OF PHONE CALLS ON FEBRUARY 5 AND 6?

A: NO.

Q: SO THAT WOULD HAVE A DIFFERENT REFLECTION IN THE NOTES — I’M SORRY — IN THE RECORDS?

A: IT WOULD NOT SAY. THERE’S NO WAY TO KNOW.

Q: SO IT COULD BE FROM SUCH A PHONE?

MR. FELDMAN: SPECULATION. OBJECTION.

THE COURT: OVERRULED.

YOU CAN ANSWER.

THE WITNESS: REPEAT THE QUESTION.

MR. CLARKE: SURE.

BY MR. CLARKE:

Q: WHEN THERE’S NO PHONE NUMBER DESCRIBED IN YOUR RECORDS FOR THOSE TELEPHONE CALLS, WHETHER IT’S THE 5TH OR THE 6TH OR ANY OTHERS OF THE NUMBERS IN THE VARIOUS RECORDS YOU HAVE, CAN AN EXPLANATION FOR THAT BE THAT THEY HAVE BEEN CALLS MADE FROM A CALLER I.D. BLOCKING OR BLOCKED TELEPHONE?

A: YES.

Q: ALSO WITH REGARD TO THOSE CALLS ON THE 5TH AND THE 6TH, ARE THOSE RECORDS CONSISTENT WITH A TELEPHONE THAT’S ON BUT THE PERSON CHOOSES NOT TO ANSWER IT, THE CELLULAR PHONE?

A: YES.

MR. FELDMAN: ASKED AND ANSWERED. OBJECTION. MOTION TO STRIKE.

THE COURT: OVERRULED.

THE ANSWER WILL STAND.

BY MR. CLARKE:

Q: OR COULD THE PHONE SIMPLY BE OFF?

A: YES.

MR. CLARKE: THANK YOU VERY MUCH, MR. SHEETS.

THE COURT: ALL RIGHT.

ANYTHING FURTHER, MR. FELDMAN?

MR. FELDMAN: YES. SORRY.

RECROSS-EXAMINATION

BY MR. FELDMAN:

Q: NOT ONLY COULD THE PHONE BE ON OR OFF, IT COULD ALSO BE OUT OF JUICE, RIGHT?

A: YES.

Q: OR IT COULD BE OUT OF CELL. RANGE, CORRECT?

A: YES.

Q: COULD BE IN ONE OF THOSE WINDOWS OF OUR COUNTY OR SOME OTHER COUNTY WHERE THE CELLS. DON’T WORK, RIGHT?

A: YES.

Q: ANY OF THOSE ARE ALL EQUALLY CONSISTENT REASONABLE EXPLANATIONS, RIGHT?

A: YES.

Q: SO YOU DON’T INFER A MORE SINISTER INTERPRETATION TO IT, DO YOU?

A: NO.

Q: DID YOU JUST TELL US, SIR, THAT MR. CLARKE GAVE YOU NOTES THIS MORNING?

A: YES.

Q: WAS I AROUND?

A: NO.

Q: WAS ANY MEMBER OF THE DEFENSE TEAM AROUND?

A: NO.

Q: WAS EXTRA COPIES OF NOTES PROVIDED TO YOU TO GIVE TO US?

A: NO.

Q: HOW LONG DID THE — SO TELL US HOW THAT HAPPENED, WILL YOU PLEASE. HOW WAS IT THAT MR. CLARKE GAVE YOU HIS NOTES?

A: I ARRIVED AT 8:00 A.M. AND SPOKE TO MR. CLARKE. AND HE HAD THE NOTES AND ASKED ME TO LOOK THEM OVER AND VERIFY THEM.

Q: OKAY.

AND DID HE ASK YOU TO GIVE THEM BACK TO HIM?

A: HE MADE A COPY FOR ME.

Q: DID HE MAKE MORE THAN ONE COPY?

A: I DON’T KNOW.

Q: THE CALL THAT YOU DISCUSSED ON THE ROAM, I JUST WANT TO MAKE SURE THAT IT’S CLEAR, JUST THE ROAMING CALL, MR. CLARKE ASKED YOU, THAT CALL THAT WAS MADE FROM THE IMPERIAL VALLEY, YOU DON’T KNOW WHERE THE CALL WAS MADE FROM, YOU JUST KNOW THE CELL. WAS IN THE IMPERIAL VALLEY?

A: I DO NOT KNOW THE CELL. OR THE LOCATION OF THE CELL. WAS IN IMPERIAL VALLEY, YES.

Q: BUT YOU DO NOT KNOW WHERE THE CALL WAS PLACED, FROM WHERE THE CALL WAS PLACED.

A: YES.

Q: I WOULD LIKE TO DIRECT YOUR ATTENTION NOW TO THAT PAGE. I’M SORRY, SIR. I WILL SHOW YOU SO THAT YOU SEE WHAT PAGE IT IS. JUST SO WE ARE ON, HA, HA, THE SAME PAGE.

MR. CLARKE: I’M SORRY. CAN I BE ON THE SAME PAGE, YOUR HONOR?

THE COURT: CERTAINLY.

MR. FELDMAN: WE’RE ALL ON THE SAME PAGE NOW.

BY MR. FELDMAN:

Q: FIRST OF ALL, WHAT’S THE DOCUMENT YOU’RE LOOKING AT, PLEASE?

A: THIS IS A DUPLICATE COPY OF A BILLING STATEMENT PROVIDED TO A CUSTOMER.

Q: THE CUSTOMER WITH THE NUMBER 354-7975, IS THAT RIGHT?

A: YES.

Q: AND IT SHOWS A SERIES OF PHONE CALLS. YOU WERE ONLY ASKED UP TO THE 4TH I THINK. HOW ABOUT ON THE 5TH; WAS THERE ANY PHONE CALL MADE ON THE 5TH?

A: YES.

Q: AND WHAT WAS THE PHONE NUMBER ON THE 5TH AT 9:17 A.M.? TO WHAT NUMBER WAS THAT MADE?

A: 858 679-8306.

Q: THEN THERE WAS A CALL MADE AT 9:17 A.M., RIGHT?

A: YES.

Q: AND THEN THERE WAS ANOTHER CALL MADE AT — WHAT I’M TRYING TO AVOID IS NATIONAL TELEVISION CALLING THESE PEOPLE. SO I AM TRYING NOT TO RUN THESE PHONE NUMBERS DOWN. I’M JUST EXPLAINING THAT TO YOU, SIR. THERE WAS A CALL AT 11:01 A.M., IS THAT CORRECT?

A: YES.

Q: BASICALLY TO THE SAME PHONE NUMBER AS HAD BEEN MADE AT 9:17, CORRECT?

A: NO. THAT WAS AN INCOMING CALL.

Q: COULD YOU EXPLAIN — OKAY, EXPLAIN THAT TO ME, PLEASE. THE CALL AT 11:01 IS INCOMING TO THE SAME NUMBER FROM WHICH THERE WAS AN OUTGOING CALL AT 9:17.

A: YES.

Q: SIMPLY, AT 11:50 A.M. ON THE 5TH THERE WAS ANOTHER INCOMING CALL FROM — ALL INVOLVING THE SAME PHONE NUMBERS, IS THAT RIGHT?

A: YES.

Q: THEN AT 2:05 THERE WAS A VOICE MAIL CHECK AT 1:15, IS THAT RIGHT?

A: NO.

Q: DOESN’T IT SAY 1:15 P.M. VOICE MAIL?

A: IT ONLY SHOWS THE INCOMING CALL WAS ROUTED TO THE VOICE MAIL.

Q: WHEN I SAID CHECK, YOU JUST DON’T KNOW — OH, IT WAS ROUTED TO THE VOICE MAIL. CAN YOU TELL WHETHER OR NOT IF IT’S ROUTED TO THE VOICE MAIL A PERSON IS GIVING A MESSAGE OR TAKING A MESSAGE? DO YOU KNOW WHAT I MEAN?

A: YES. THAT WAS NOT IN THE DOCUMENTS THAT I BROUGHT.

Q: OKAY.

SO WHEN IT SAYS VOICE MAIL, YOU CANNOT TESTIFY THAT IT WAS MESSAGE LEFT OR MESSAGE PICKED UP, CORRECT?

A: CORRECT.

Q: ON THE 5TH AT 1:34 P.M. WE SEE VOICE MAIL AGAIN, CORRECT?

A: YES.

Q: AND THEN WE SEE INCOMING AT 1:59 P.M. SAME DATE. RIGHT?

A: YES.

Q: 3:11 P.M. WE SEE OUTGOING, CORRECT?

A: YES.

Q: AND BASICALLY THE RECORDS THEN MOVE TO THE 6TH. WELL, I THINK I MISSED 4:41 P.M. THERE WAS A CALL. IS THAT RIGHT?

A: YES.

Q: AND THEN AT — ON THE 6TH AT 11:19 A.M. THERE WAS A CALL MADE TO 679-5767.

A: YES.

Q: DO YOU KNOW WHETHER THE PHONE NUMBER 354-7975 IS NEAL WESTERFIELD’S PHONE NUMBER?

A: NO.

Q: DO YOU KNOW WHO NEAL WESTERFIELD IS?

A: NO.

Q: DO YOU KNOW WHETHER OR NOT HE’S DAVID WESTERFIELD’S SON?

A: NO.

Q: WITH REGARD TO THE SUBPOENA THAT YOU RECEIVED, DID IT — AND WITH REGARD TO THE PAGE, I THINK WE’RE ALL ON THE SAME PAGE, NO PUN, DO THOSE RECORDS, WERE THEY LIMITED, WAS THE REQUEST FOR THOSE RECORDS LIMITED TO ONLY INCLUDE PHONE CALLS FEBRUARY 1ST ON?

A: FEBRUARY 1ST UNTIL FEBRUARY 6TH.

Q: SO THE BLACKOUT AGAIN ON THE PAGE THAT WE’VE ALL BEEN LOOKING AT, THAT WHICH IS BLACKED OUT, YOU BELIEVE RELATES TO CALLS THAT WERE NOT MADE ON FEBRUARY THE 1ST.

A: YES.

MR. FELDMAN: THANK YOU VERY MUCH.

NO FURTHER QUESTIONS.

THE COURT: ANYTHING FURTHER?

MR. CLARKE: JUST A COUPLE, YOUR HONOR.

FURTHER REDIRECT EXAMINATION

BY MR. CLARKE:

Q: MR. SHEETS, WITH REGARD TO THE NOTES IN MY HANDWRITING ON EXHIBIT 63, HOW DID I DO?

A: A-MINUS.

Q: AM I STILL IN THE RUNNING FOR A JOB AT VERIZON?

A: YES, YOU ARE.

Q: ANY ERRORS THAT I MADE DID YOU CORRECT BY YOUR PROFESSIONAL REVIEW OF THE DOCUMENTS?

A: YES.

Q: LAST AREA IS THOSE CALLS ON FEBRUARY 6TH, AND I WOULD LIKE TO DIRECT YOUR ATTENTION TO AGAIN THE CELLULAR PHONE NUMBER THAT I HAD YOU DESCRIBE, THE SERIES OF PHONE CALLS DURING DIRECT, INCLUDING THE PHONE CALL THAT CITED IN IMPERIAL VALLEY, SO WE KNOW WHICH PHONE NUMBER WE’RE UTILIZING, —

A: OKAY.

Q: — WITH RESPECT TO THAT PHONE ON FEBRUARY 6TH, MR. FELDMAN ASKED YOU AGAIN A SERIES OF QUESTIONS ABOUT PHONE CALLS MADE, ACTUALLY LARGELY VOICE MAILS, CORRECT, ON THAT DATE?

A: YES.

Q: AGAIN I’M SORRY, FEBRUARY 5TH AND FEBRUARY 6TH, AND I THINK THE VOICE MAIL ENTRIES GO THROUGH FEBRUARY 6TH AT 2:48 P.M., IS THAT CORRECT?

A: REPEAT THE QUESTION.

Q: SURE.

WITH RESPECT TO AGAIN THE DATE OF FEBRUARY 6TH AND A NUMBER OF VOICE MAIL ENTRIES IN THE RECORDS, DO YOU SEE THOSE?

A: YES.

Q: ISN’T THERE AN ENTRY AT 2:51 P.M. THAT’S DIFFERENT?

A: YES.

Q: WHAT IS THAT PHONE CALL?

A: THAT IS THE STAR 86 WHICH WE DISCUSSED EARLIER.

CHECKING YOUR VOICE MAIL.

Q: ALL RIGHT.

MADE FROM WHAT PHONE?

A: FROM THE PHONE IN QUESTION.

Q: THE CELLULAR PHONE ITSELF?

A: FROM THE CELLULAR PHONE, YES.

Q: AND YOUR RECORDS — SO THAT THAT CALL WAS MADE FROM THAT SPECIFIC PHONE, CORRECT?

A: YES.

Q: THAT MEANS THE PHONE WAS WORKING AT THAT TIME, DOESN’T IT?

A: YES.

Q: AND IN FACT ISN’T THERE AN ENTRY IMMEDIATELY AFTER THAT, ONE MINUTE LATER, ANOTHER PHONE CALL, CORRECT?

A: YES.

Q: FROM THAT CELLULAR PHONE?

A: YES.

Q: AND IT WAS OPERATING?

A: YES.

MR. CLARKE: THANK YOU VERY MUCH.

THE COURT: ANYTHING FURTHER, MR. FELDMAN?

MR. FELDMAN: OH, YEAH. BUT SHORT.

FURTHER RECROSS-EXAMINATION

BY MR. FELDMAN:

Q: LOOKING AT THE SAME PAGE OF THE RECORDS, IF YOU’RE UTILIZING THE ENTRY M. M. RETRIEVE AS EVIDENCE THAT THE PHONE WAS WORKING ON 2/6 AT 2:51 P.M., — IS THAT RIGHT?

A: YES.

Q: — THE NEXT TIME WE SEE THAT WORD RETRIEVE, THOUGH, IS ON 2/2, IS THAT RIGHT?

A: YES.

Q: I’M SORRY. I’M GETTING A LITTLE CONFUSED HERE. DOES THAT MEAN ON THESE RECORDS THE CELL. PHONE WAS NOT WORKING BETWEEN 2:51 P.M. ON 2/6 AND 6:13 P.M. ON THE 2ND?

A: THAT IS UNCLEAR.

Q: WHEN YOU SAY UNCLEAR, WHAT DO YOU MEAN TO COMMUNICATE?

A: THERE’S NO WAY TO KNOW IF THE PHONE WAS WORKING OR NOT.

Q: SO IT COULD HAVE NOT BEEN WORKING, THAT’S ONE REASONABLE INTERPRETATION OF THIS EVIDENCE, IS THAT CORRECT?

A: EVERY TIME YOU SEE M. M. RETRIEVE, THAT SHOWS THAT THE PHONE IS WORKING.

Q: YES.

A: ALL OF THE OTHER RECORDS DO NOT SAY ONE WAY OR ANOTHER IF THE PHONE WAS WORKING OR NOT.

Q: WELL, IF YOU MOVE UP TO 2/3, THERE’S A W AT 7:33 P.M. IT SAYS POWAY. DO YOU SEE THAT?

A: YES.

Q: IS THAT INDICATION THAT THE PHONE IS WORKING OR ISN’T WORKING?

A: THAT MEANS THE PHONE IS WORKING.

Q: OKAY.

A: THE ONLY TIME YOU WOULD NOT KNOW IF THE PHONE WAS WORKING, WHETHER IT WAS WORKING OR NOT, IS IF YOU SEE VOICE MAIL. ALL THE OTHER CALLS SHOW THAT THE PHONE WAS WORKING.

Q: ALL RIGHT.

SO EVERY PLACE WE SEE VOICE MAIL SUGGESTS EITHER THE PHONE WASN’T WORKING, IT WAS IN A CELL. BLOCKED AREA, THE PERSON WASN’T ANSWERING, THE BATTERIES WERE OUT; ANY ONE OF THOSE ARE REASONABLE EXPLANATIONS, CORRECT?

A: YES.

Q: BUT TO PRECISELY PINPOINT ONE OR THE OTHER WOULD BE NOTHING MORE THAN SPECULATION, GUESSWORK, ISN’T THAT RIGHT?

A: YES.

MR. FELDMAN: NO FURTHER QUESTIONS.

THE COURT: ANYTHING FURTHER?

FURTHER REDIRECT EXAMINATION

BY MR. CLARKE:

Q: AND THE PHONE COULD HAVE BEEN OFF, CORRECT?

A: YES.

MR. CLARKE: NOTHING FURTHER.

THE COURT: ANYTHING FURTHER?

MR. FELDMAN: THANK YOU, YOUR HONOR.

THE COURT: IS THIS WITNESS TO BE EXCUSED?

MR. FELDMAN: NO OBJECTION.

MR. CLARKE: NO OBJECTION.

THE COURT: ALL RIGHT.

THANK YOU VERY MUCH, SIR, FOR COMING IN. SINCE THOSE ARE MR. CLARKE’S NOTES, YOU CAN GIVE THAT WHOLE PACKAGE TO THE D. A. ON YOUR WAY BY.

PLEASE REMEMBER THE ADMONITION THAT YOU ARE NOT TO DISCUSS YOUR TESTIMONY WITH ANYONE UNTIL THE MATTER IS CONCLUDED.

THE WITNESS: THANK YOU.

MR. FELDMAN: YOUR HONOR, THERE WAS AN EXHIBIT UP THERE I JUST DON’T RECALL.

THE COURT: NO. HE’S GOING TO HAND THE ENTIRE PACKAGE, SO WE ARE GOING TO GET IT.

(THE WITNESS WAS EXCUSED.)

THE COURT: ALL RIGHT. LADIES AND GENTLEMEN, WE HAVE TO TAKE A BREAK SOME TIME. THIS IS A GREAT SEGUE INTO IT.

PLEASE REMEMBER THE ADMONITION OF THE COURT NOT TO DISCUSS ANY OF THE EVIDENCE OR TESTIMONY AMONG YOURSELVES OR WITH OTHERS, NOR FORM OR EXPRESS ANY OPINIONS ON THE MATTER UNTIL THE CASE IS SUBMITTED TO YOU.